The ultimate question we address in this case is whether the guardian of a mentally ill person possesses the inherent authority to consent to the forcible administration of antipsychotic medication to his noninstitutionalized ward in the absence of an emergency. We conclude that, absent emergency, antipsychotic medication may be administered forcibly to a ward only when ordered by a judge in accordance with the principles articulated herein. This result is mandated by both constitutional and common law principles.
On May 27 and June 19, 1980, evidentiary hearings on the temporary guardian's petition for appointment as permanent guardian were held in the Probate Court before the same judge. The Commissioner of the Department of Mental Health, represented by the Attorney General, was allowed to intervene in both the Probate Court and this court. On July 30, 1980, the probate judge appointed the temporary guardian to be permanent guardian, stating in his order that upon the vacating of the stay issued by the single justice the permanent guardian would have the authority to consent to the forcible administration of antipsychotic medication to the ward.
I. THE GUARDIANSHIP PROCEEDINGS.
We summarize the material facts found by the judge following the hearings on appointment of a permanent guardian. We emphasize first that the guardian ad litem frankly conceded at oral argument that the ward is "substantially and severely mentally ill," and this is therefore not directly in issue.
The ward was born on December 28, 1958, and was twenty-one years of age at the time of both guardianship appointments. As a child, the ward had been a bright and popular student, elected twice as vice president of his junior high school class in the public school system. In his freshman year of high school he entered a private, residential preparatory school located near his home. During his first
While at the public school the ward was evaluated pursuant to the "chapter 766" program, and it was recommended that he be hospitalized in a psychiatric hospital. During this time he displayed violent behavior toward his sister and threatened to kill his mother. Subsequently, on August 21, 1979, he was committed to Northampton State Hospital for observation pursuant to G.L.c. 123, § 15 (b), on a charge of receiving stolen property. He was diagnosed as mentally ill, suffering from schizophrenia, chronic undifferentiated type. After his release from Northampton State Hospital he continued to reside at home, where his family tried to protect him from stressful influences. The ward displayed bizarre behavior at home, wearing a fur coat for hours on extremely hot days and standing for prolonged periods of time with a water glass poised at his lips. On numerous occasions the ward's father tried to involve the ward in psychotherapy, but the ward refused to accept any treatment or therapy.
On February 19, 1980, the ward was committed for a second time to Northampton State Hospital for observation, as a result of being charged with attempted unarmed
While the ward was still hospitalized, his parents filed petitions seeking appointment of the father as both temporary and permanent guardian. Since the ward's scheduled release date from Northampton State Hospital was April 18, 1980, and the return date for the petition to appoint a permanent guardian was April 22, 1980, the ward would have no guardian during the four-day interim period if a guardian was not appointed before the ward's release. Finding, inter alia, that there was a strong likelihood that the ward would inflict serious injury upon the public or himself and that there was a need for the immediate appointment of a temporary guardian, the probate judge on April 1, 1980, granted the parents' petition seeking the father's appointment as temporary guardian. The judge stated that until the hearing on the petition for the appointment of a permanent guardian the temporary guardian would have the authority to make treatment decisions. It was likely that during this interim period the ward would be released from the State hospital and would return to his family, and the guardian was by implication authorized to make treatment decisions in both situations. Upon motion by the guardian ad litem, the judge prohibited the forcible administration of antipsychotic medication to the ward for ten days, and a single justice of this court extended the stay to the present time. The temporary guardian was appointed permanent guardian on July 30, 1980, with authority to consent to the challenged medical treatment if we vacated the order prohibiting such treatment. The guardian ad litem appealed, and a single justice allowed a joint motion to transfer the case to this court pursuant to G.L.c. 211, § 4A. On September
We first determine the proper standard of proof by which the evidence adduced in guardianship proceedings must be evaluated. We then consider the appointment of a temporary guardian in the circumstances described above, following which we examine the appointment of a permanent guardian. Since we decide that both appointments were proper, we outline, in Part II, infra, the appropriate procedure by which a guardian of a mentally ill person may obtain a court order directing the forcible administration of antipsychotic medication to his ward. We conclude, in Part III, infra, with our observations concerning the limits of what we have decided.
A. THE STANDARD OF PROOF IN GUARDIANSHIP PROCEEDINGS.
We first turn to the threshold issue raised by the guardian ad litem in his contention that the findings supporting the judge's conclusions "are clearly erroneous if not established by credible evidence beyond a reasonable doubt." In support of this contention the guardian ad litem cites Doe v. Doe, 377 Mass. 272, 280-281 (1979), and Fazio v. Fazio, 375 Mass. 394, 400-402 (1978). Were we to accept this contention we would establish an exception to the general rule in civil cases that the proof must be by a preponderance of the evidence. 9 J. Wigmore, Evidence § 2498 (3d ed. 1940). We have hesitated to make such exceptions in the past. Custody of a Minor (No. 1), 377 Mass. 876, 885 (1979). Such an exception should not be applied "too broadly or casually in noncriminal cases." Addington v. Texas, 441 U.S. 418, 428 (1979). As we examine the relevant Massachusetts cases the reasons for our previous exceptions to the general rule will become apparent, and it will be seen that these reasons are inapposite here.
We confronted this issue, but did not decide it, in Fazio v. Fazio, supra, where we stated, "We do not think it necessary
General Laws c. 201, §§ 6 and 14, the statutes concerning the appointment of permanent and temporary guardians, do not address the question. Our cases under G.L.c. 201 and similar statutes, however, establish the principle that proof beyond a reasonable doubt is required when a person (1) receives a stigma at least as great as that flowing from a criminal conviction, and (2) faces a potential loss of liberty. Andrews, petitioner, 368 Mass. 468, 489 (1975). Since the ward here does not face a potential loss of liberty, Doe v. Doe, 377 Mass. 272 (1979), we must decide whether the stigma of being adjudicated unable to care for oneself by reason of mental illness is sufficient alone to require that it be proved beyond a reasonable doubt. For the same reasons that we articulated in Custody of a Minor (No. 1), 377 Mass. 876, 884-886 (1979) (determination that individual is an unfit parent is insufficient to entitle the individual to benefit of criminal standard), we think that it is not.
Much of the confusion regarding the appropriate standard of proof to be applied in civil cases involving mental illness was recently resolved in Addington v. Texas, 441 U.S. 418 (1979). In Addington, eight members of the United States Supreme Court held that a State must apply a standard of proof greater than a preponderance of the evidence in civil commitment proceedings in order to meet due process guarantees. Addington, supra at 432-433. Individual States, of course, remained free to establish standards of proof higher than this constitutional minimum, as we did in Superintendent of Worcester State Hosp. v. Hagberg, 374 Mass. 271,
While we recognize the vast differences between the appointment of a guardian for a mentally ill ward and the involuntary civil commitment of a mentally ill person, much of the Court's discussion in Addington of the nature and function of standards of proof is relevant here. The function of a standard of proof is to "instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication." In re Winship, 397 U.S. 358, 370 (1970) (Harlan, J., concurring). The standard allocates the risk of error between the litigants and indicates the relative importance attached to the ultimate decision. Addington v. Texas, supra at 423. In considering what standard should govern in a guardianship proceeding, we must assess both the extent of the proposed ward's interest in not being erroneously subjected to guardianship and the State's interest in protecting those who might erroneously be denied the benefits of guardianship under a more stringent standard of proof.
This court repeatedly has recognized that confinement for any purpose constitutes a significant deprivation of liberty that requires society to bear the risk of error, and so has required the application of the "beyond a reasonable doubt" standard in such situations. See, e.g., Andrews, petitioner, 368 Mass. 468 (1975) (beyond a reasonable doubt standard applied to possible commitment as sexually dangerous person under G.L.c. 123A, § 6); Superintendent of Worcester State Hosp. v. Hagberg, 374 Mass. 271 (1978) (commitment to mental health facility under G.L.
If we adopted the criminal standard of proof in guardianship proceedings, the appointment of a guardian would be precluded for all but those whose mental illness and inability to care for themselves could be established beyond a reasonable doubt. This preclusion would doubtless apply to
Moreover, were we to apply the criminal standard to the appointment of guardians, it would be exceedingly difficult to meet the standard even in the most extreme cases. "The subtleties and nuances of psychiatric diagnosis render certainties virtually beyond reach in most situations. The reasonable-doubt standard of criminal law functions in its realm because there the standard is addressed to specific, knowable facts. Psychiatric diagnosis, in contrast, is to a large extent based on medical `impressions' drawn from subjective analysis and filtered through the experience of the diagnostician. This process often makes it very difficult for the expert physician to offer definite conclusions about any particular patient." Addington v. Texas, 441 U.S. 418, 430 (1979).
For all of these reasons, we conclude that a permanent guardian may be appointed pursuant to G.L.c. 201, § 6, upon proof that it is more likely than not that an individual is unable to care for himself by reason of mental illness, and a temporary guardian may be appointed pursuant to G.L.c. 201, § 14, upon proof that it is more likely than not that the welfare of a mentally ill person requires the immediate appointment of a temporary guardian.
B. THE APPOINTMENT OF A TEMPORARY GUARDIAN IN THIS CASE.
The guardian ad litem contends that the appointment of the temporary guardian was improper since the requisite
Two witnesses testified at the hearing on the petition for appointment of a temporary guardian. One of them, the medical director at Northampton State Hospital, stated that the ward was determined to be mentally ill in August, 1979, when the ward was first committed to Northampton State Hospital for observation and report following a criminal complaint filed against him for receiving stolen property. At that time he was diagnosed as suffering from schizophrenia, paranoid type. Test results suggested many psychological problems, among them "the intense need to present a good front, judgment deficiency, identity problems, anxiety, insecurity, shallow social relations, handling hostilities by making others miserable, egocentricity, low self-esteem, rigid defenses and little tolerance to their being challenged, little learning from experience, poor insight, stubborn attitude, hypersensitivity" and the possibility of aggressive behavior. The medical director further stated that the ward's judgment was impaired to the point that he was unable to care for himself properly, and that failure to initiate drug therapy promptly would increase the chance that this mental illness would become chronic.
The guardian (the ward's father) testified, among other things, that the ward tended to become violent when communications became difficult, that he had not been "acting right" since age sixteen, that he had assaulted both of his parents and that he had been very heavily involved in drug abuse while attending private school. The guardian ad litem's report informed the judge that, at the time of the hearing, the ward was again committed to Northampton State Hospital as a result of criminal complaints filed against him charging attempted unarmed robbery and assault and battery. Evidence showed that there would be a four-day interval after the ward's release from the hospital but before the return date of the petition for appointment of
Based on this evidence and on other evidence before the court, the judge made the following findings: that the ward was mentally ill; that his judgment was seriously impaired; that he could not make informed decisions with reference to his personal conduct or his financial affairs; that his judgment was impaired to such an extent that if he were released there would be a strong likelihood that he would inflict serious injury upon himself or upon other members of the public; and that there was a necessity for the immediate appointment of a guardian. The judge concluded that, under Rogers I, supra, the guardian would have the inherent authority to make treatment decisions. We think that the evidence more than adequately supported the judge's findings.
The guardian ad litem asks that the appointment of a permanent guardian be vacated since, he contends, the subsidiary findings and findings of the judge are not warranted by the evidence. It is the guardian ad litem's position that, even if these findings are supported by the evidence, they are legally insufficient to constitute an adequate basis for the appointment of a permanent guardian. The guardian ad litem does not, however, take issue with the findings that the ward suffers from schizophrenia, paranoid type, that he is at times psychotic, and that he is mentally ill. Although we think that the guardian was erroneously empowered to medicate his ward forcibly, see Part II, infra, the appointment of the guardian was otherwise proper and warranted by both the evidence and the findings.
Three psychiatrists, the ward's court-appointed attorney (who was appointed to represent the ward in pending criminal matters), the ward's father (the guardian), and the ward's mother all testified at the hearing. The first psychiatrist stated, among other things, that the ward was mentally ill, was suffering from schizophrenia, paranoid type, and was not competent either to make treatment decisions or otherwise to care for his person. The second psychiatrist, called by the guardian ad litem, expressed his opinion that the ward was mentally ill but competent to
Based upon this evidence the judge entered fifty subsidiary findings and fourteen findings. The judge found, inter alia, that the ward was mentally ill, incapable of caring for himself except in the most restrictive environment, incapable of managing his financial affairs except on a very limited basis and incapable of being gainfully employed in any work except under the direct supervision of his father. These findings were clearly supported by the evidence, and, as we explain below, with the other findings
The appointment of a permanent guardian for a mentally ill person must be based upon findings that the ward (1) is incapable of taking care of himself, (2) by reason of mental illness. G.L.c. 201, § 6. See Russell v. Russell, 336 Mass. 762, 763 (1958); Willett v. Willett, 333 Mass. 323, 330 (1955); Bashaw v. Willett, 327 Mass. 369, 370 (1951). As we have previously stated, "[A] finding that a person is in need of a guardian `due to mental illness,' is not sufficient. Clearly, the requirement that a mentally ill person be found incapable of taking care of himself lies at the very heart of a guardianship proceeding." Fazio v. Fazio, 375 Mass. 394, 399 (1978). In Fazio we construed the statutory phrase "incapable of taking care of himself by reason of mental illness" as "encompassing a general inability on the part of an individual to manage his own person and financial affairs, such inability being caused by mental illness." Id. at 403. "[T]he type of evidence necessary to support such a finding, apart from evidence as to mental illness, should consist of facts showing a proposed ward's inability to think or act for himself as to matters concerning his personal health, safety, and general welfare, or to make informed decisions as to his property or financial interests." Id. Unlike Fazio, where we found the evidence and findings to be deficient, we have in this case substantial evidence demonstrating the inability of the ward to care for his own welfare and safety, as well as evidence showing the threat he poses to the safety of others. In addition there are clear findings addressing the statutory criteria made by a judge who articulated the Fazio requirements during the hearing. We find no error in the appointment of a permanent guardian.
We begin our discussion of the medical treatment decision by noting that we are directly presented with only one question. We must decide whether the substituted judgment determination to be made in cases such as this may be delegated to the guardian. The probate judge found that the guardian did not propose to authorize forcible administration of antipsychotic drugs
A. NEED FOR A COURT ORDER.
The primary dispute in this case concerns the means by which the ward is to exercise his right to refuse treatment, a right which the ward possesses but is incapable of exercising personally.
We have in the past stated our preference for judicial resolution of certain legal issues arising from proposed extraordinary medical treatment. Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 759 (1977). Matter of Spring, 380 Mass. 629, 635 (1980). See Rogers II, 634 F.2d 650 (1st Cir.1980), cert. granted, 451 U.S. 906 (1981). We reaffirm this preference in the circumstances shown here. While we are mindful that "[t]he judicial model for factfinding for all constitutionally protected interests, regardless of their nature, can turn rational decision-making into an unmanageable enterprise," Parham v. J.R., 442 U.S. 584, 608 n. 16 (1979), the question presented today seems "to require the process of detached but passionate investigation and decision that forms the ideal on which the judicial branch of government was created," Saikewicz, supra.
The question presented by the ward's refusal of antipsychotic drugs is only incidentally a medical question. Absent an overwhelming State interest, a competent individual has the right to refuse such treatment. To deny this right to persons who are incapable of exercising it personally is to degrade those whose disabilities make them wholly reliant on other, more fortunate, individuals. In order to accord proper respect to this basic right of all individuals, we feel that if an incompetent individual refuses antipsychotic
There is no bright line dividing those decisions which are (and ought to be) made by a guardian, from those for which a judicial determination is necessary. The tension which makes such a line so difficult to draw is apparent. There is an obvious need for broad, flexible, and responsive guardianship powers, but simultaneously there is a need to avoid the serious consequences accompanying a well-intentioned but mistaken exercise of those powers in making certain medical treatment decisions.
We have recently identified the factors to be taken into account in deciding when there must be a court order with respect to medical treatment of an incompetent patient. "Among them are at least the following: the extent of impairment of the patient's mental faculties, whether the patient is in the custody of a State institution, the prognosis without the proposed treatment, the prognosis with the proposed treatment, the complexity, risk and novelty of the proposed treatment, its possible side effects, the patient's level of understanding and probable reaction, the urgency of decision, the consent of the patient, spouse, or guardian, the good faith of those who participate in the decision, the clarity of professional opinion as to what is good medical practice, the interests of third persons, and the administrative requirements of any institution involved." Matter of Spring, supra at 637. Without intending to indicate the
(1) The intrusiveness of the proposed treatment. We can identify few legitimate medical procedures which are more intrusive than the forcible injection of antipsychotic medication.
While antipsychotic drugs can actually lessen the amount and intensity of psychotic thinking, among the most important reasons for their continued use is to control behavior.
(2) The possibility of adverse side effects. Although, as we establish above, the intended effects of antipsychotic drugs are extreme, their unintended effects are frequently devastating and often irreversible. The adverse side effects accompanying administration of antipsychotic drugs have been known since the late 1950's. Baldessarini & Lipinski, Risks vs. Benefits of Antipsychotic Drugs, 289 New England J. Med. 427, 428 (1973). "`[T]oxic' effects regularly accompany the use of antipsychotic drugs to ameliorate schizophrenic symptoms. The most common results are the temporary, muscular side effects (extra-pyramidal symptoms) which disappear when the drug is terminated; dystonic reactions (muscle spasms, especially in the eyes, neck, face, and arms; irregular flexing, writhing or grimacing movements; protrusion of the tongue); akathesia (inability to stay still, restlessness, agitation); and Parkinsonisms (mask-like face, drooling, muscle stiffness and rigidity, shuffling gait, tremors). Additionally, there are numerous other nonmuscular effects, including drowsiness, weakness, weight gain, dizziness, fainting, low blood pressure, dry mouth, blurred vision, loss of sexual desire, frigidity, apathy, depression, constipation, diarrhea, and changes in the blood. Infrequent, but serious, nonmuscular side effects, such as skin rash and skin discoloration, ocular changes, cardiovascular changes, and occasionally, sudden death, have also been documented.
"There is little doubt that prolonged administration of psychoactive drugs plays a major role in the development of tardive dyskinesia. Individual susceptibility to the condition depends upon a variety of factors including increasing age, sex, and the existence of organic brain syndromes" (footnotes omitted). Plotkin, supra at 475-477. Commentators and courts have found that antipsychotic drugs are high-risk treatment.
(3) The absence of an emergency. The evidence presented in the proceedings below makes it quite clear that the probate judge was not presented with a situation which could accurately be described as an emergency. We accept the dictionary definition of "emergency": "an unforeseen combination of circumstances or the resulting state that calls for immediate action." Webster's Third New Int'l Dictionary, at 741 (1961). Medical evidence showed that the ward apparently had been schizophrenic for four years, without more than slight or temporary improvement, and that without treatment his mental health could deteriorate. Expert testimony indicated that the prognosis for most individuals with untreated schizophrenia was "gradual worsening." In an attempt to elicit an individual prognosis, counsel for the guardian posed a significant question to the expert. "[I]s there a point in time, Doctor, where the failure to initiate treatment by drug therapy would result in [the ward's] condition being substantially impaired or irreparable impaired in terms of bringing any treatment to him that would help him?" The doctor responded, "Well, the longer one waits, the more chance there is of the condition becoming chronic." No follow-up questions were asked. We think that the possibility that the ward's schizophrenia might deteriorate into a chronic, irreversible condition at an uncertain but relatively distant date does not satisfy our definition of emergency, especially where, as
We are not called upon here to decide under which circumstances an emergency might relieve a guardian from the obligation of seeking a judicial determination of substituted judgment which would otherwise be required. We do, however, emphasize that in determining whether an emergency exists in terms of requiring "immediate action," the relevant time period to be examined begins when the claimed emergency arises, and ends when the individual who seeks to act in the emergency could, with reasonable diligence, obtain judicial review of his proposed actions. This time period will, of course, be brief — as we noted in Matter of Spring, supra at 642, "expedited decision can be obtained when appropriate." We recognize that "the interests of the patient himself would [not] be furthered by requiring responsible [parties] to stand by and watch him slip into possibly chronic illness while awaiting an adjudication." Rogers II, supra at 660. However, the evidence shows that this is not such a case — in fact, unless the course of a disease is measured by hours, there need never be such a case in the courts of this Commonwealth. We are certain that every judge recognizes that in any case where there is a possibility of immediate, substantial, and irreversible deterioration of a serious mental illness, even the smallest of avoidable delays would be intolerable.
(4) The nature and extent of prior judicial involvement. For the past four years the ward has rejected antipsychotic medication on every occasion on which it has been offered, and there has been no judicial finding of incapacity relative to many of these occasions. It is possible that in some cases, although not in the instant case, a mentally ill ward may retain sufficient competence to make treatment decisions himself, thereby eliminating the need for a substituted judgment determination.
In a case such as the one before us, some judicial involvement is unavoidable inasmuch as the judge must: (1) appoint the guardian, and (2) determine the ward's competency to make treatment decisions. This significant and inescapable prior judicial involvement eliminates much concern we might otherwise have about requiring a further judicial determination, since one of the factors we consider in deciding whether the guardian is to make the substituted judgment determination is the amount of additional time which will be needed to obtain a judicial determination. While this prior involvement is not conclusive in and of itself, it is a factor to be considered in determining whether a court order must be obtained.
(5) The likelihood of conflicting interests. Decisions such as the one the guardian wishes to make in this case pose exceedingly
Each individual involved, when called upon to participate in the substituted judgment determination, is assisting in the attempt to determine the ward's values and preferences. The guardian will usually play a major role in this process. The formalities and discipline inherent in a judicial determination will impress upon all involved the need for objectivity and selflessness. We are convinced that in this case, as in other cases, the regularity of the procedure — guaranteed by a judicial determination — will ensure that objectivity which other processes might lack.
B. RELEVANT FACTORS IN THE SUBSTITUTED JUDGMENT DETERMINATION.
The immediate question confronting us is resolved by our conclusion that, when a timely determination needs to be made, it is to be made by a judge. However, because of the likelihood that a proper determination will be sought by these or other parties in the future, we set forth below guidelines to be followed in order to ensure accuracy and consistency in proceedings in the Probate Court.
(1) The ward's expressed preferences regarding treatment. If the ward has expressed a preference while not subjected
Even if the ward lacks capacity to make treatment decisions, his stated preference is entitled to serious consideration as a factor in the substituted judgment determination. "Although [the ward] failed to understand his mental condition and his need for treatment, we think his stated preference must be treated as a critical factor in the determination of his `best interests.'" Doe v. Doe, 377 Mass. 272, 279 (1979). This respect for the ward's preference and the reasons for this deference have long been recognized in our cases. "A man may be insane so as to be a fit subject for guardianship, and yet have a sensible opinion and strong feeling upon the question who that guardian shall be. And that opinion and feeling it would be the duty as well as the pleasure of the court anxiously to consult, as the happiness of the ward and his restoration to health might depend upon it." Allis v. Morton, 4 Gray 63, 64 (1855).
(2) The ward's religious beliefs. An individual might choose to refuse treatment if the acceptance of such treatment would be contrary to his religious beliefs. If such a reason is proffered by or on behalf of an incompetent, the judge must evaluate it in the same manner and for the same purposes as any other reason: the question to be addressed is whether certain tenets or practices of the incompetent's faith would cause him individually to reject the specific course of treatment proposed for him in his present circumstances. We adopt the approach taken by the court in In re Boyd, 403 A.2d 744 (D.C. App. 1979). In Boyd the court detailed the spectrum of tenacity with which an individual
(3) The impact upon the ward's family. An individual who is part of a closely knit family would doubtless take into account the impact his acceptance or refusal of treatment would likely have on his family. Such a factor is likewise to be considered in determining the probable wishes of one who is incapable of formulating or expressing them himself. In any choice between proposed treatments which entail grossly different expenditures of time or money by the incompetent's family, it would be appropriate to consider whether a factor in the incompetent's decision would have been the desire to minimize the burden on his family. If this factor would have been considered by the individual, the judge must enter it into the balance in making the substituted judgment determination. If an incompetent has enjoyed close family relationships and subsequently is forced to choose between two treatments, one of which will allow him to live at home with his family and the other of which will require the relative isolation of an institution, then the judge must weigh in his determination the affection and assistance offered by the incompetent's family. We note, however, that the judge must be careful to avoid examination of these factors in any manner other than one actually designed and intended to effectuate the incompetent's right to self-determination. As we discuss fully in Part C, infra, if there are no overriding State interests,
(4) The probability of adverse side effects. We have described the adverse side effects of antipsychotic medication in Part II A (2), supra. Clearly any competent patient choosing whether to accept such treatment would consider the severity of these side effects, the probability that they would occur, and the circumstances in which they would be endured. The judge must also consider these factors in arriving at a determination of substituted judgment on behalf of an incompetent. Saikewicz, supra at 753-755.
(5) The consequences if treatment is refused. If the prognosis without treatment is that an individual's health will steadily, inevitably and irreversibly deteriorate, then that person will, in most circumstances, more readily consent to treatment which he might refuse if the prognosis were more favorable or less certain. This general rule, however, will not always indicate whether an individual would, if competent, accept treatment. For example, in regard to the religious beliefs we discussed in Part II B (2), supra, "even in a life-or-death situation one's religion can dictate a `best interest' antithetical to getting well." In re Boyd, supra at 750. This factor, as all the rest of the factors, must be utilized to reach an individual determination. While no judge need ignore the basic logic and common values which ordinarily underlie individual preference, he must reach beyond statistical factors and general rules to see "the complexities of the singular situation viewed from the unique perspective of the person called on to make the decision." Saikewicz, supra at 747.
(6) The prognosis with treatment. We think it can fairly be stated as a general proposition that the greater the likelihood that there will be cure or improvement,
Finally, the judge making the substituted judgment determination should address, in the following manner, each of the six factors we have described above, as well as any others relevant in the case before him. He is to make written findings for each factor, indicating within each finding those reasons both for and against treatment. Cf. Saikewicz, supra at 733-735. Following this he must analyze the relative weight of the findings in that particular case. On this basis he is to conclude whether the substituted judgment of the incompetent would be to accept or reject treatment. If the determination is to accept treatment, the judge is to order its administration.
C. THE ACCOMMODATION OF OVERRIDING STATE INTERESTS.
There are circumstances in which the fundamental right to refuse extremely intrusive treatment must be subordinated to various State interests.
(1) The State interests involved. Among the State interests which we have identified in our prior cases are: "(1) the preservation of life; (2) the protection of the interests of
In the present case the judge found that the State had a vital interest in seeing that its residents function at the maximum level of their capacity and that this interest outweighed the rights of the individual. We disagree. While the State, in certain circumstances, might have a generalized parens patriae interest in removing obstacles to individual development, this general interest does not outweigh the fundamental individual rights here asserted.
(2) The standard of proof required to justify administration of antipsychotic drugs to an unconsenting, noninstitutionalized individual. Once it is recognized that the State's interest in the prevention of violence is capable of overriding the individual's right to refuse, it must also be recognized that the character of the government intrusion then changes. The primary purpose of the treatment is not to implement the substituted judgment of the incompetent, nor is it intended to administer treatment thought to be in his best interests. It bears emphasis that public safety then becomes the primary justification for such treatment.
In order to commit an individual to a State hospital without his consent, the likelihood of serious harm must be established beyond a reasonable doubt. Superintendent of Worcester State Hosp. v. Hagberg, 374 Mass. 271, 275-277 (1978). In G.L.c. 123, § 1, as amended through St. 1980, c. 571, § 1 (the statute governing involuntary commitment), the likelihood of serious harm is defined as "(1) a substantial risk of physical harm to the person himself as manifested by evidence of threats of, or attempts at, suicide or serious bodily harm; (2) a substantial risk of physical harm to other persons as manifested by evidence of homicidal or other violent behavior or evidence that others are placed in reasonable fear of violent behavior and serious physical harm to them; or (3) a very substantial risk of physical impairment or injury to the person himself as manifested by evidence that such person's judgment is so affected that he is unable to protect himself in the community and that reasonable provision for his protection is not available in the community." Absent criminal conduct, this statutory definition establishes the earliest moment at which the State may intervene to deny an individual his liberty based upon a prediction of future harmfulness. The State may not justify its intervention on a lower standard merely because it proposes to utilize antipsychotic drugs rather than physical restraints.
(3) The extended substituted judgment determination. Since the standard of proof is the same for both involuntary commitment and involuntary administration of antipsychotic medication, in any case where the State's interest in preventing violence in the community has been found
III. THE LIMITS OF OUR DECISION.
In this opinion we have established that a guardian may be appointed for an individual upon a showing that it is
While we emphasize those conclusions we have reached and the circumstances in which they are to be utilized, it is prudent to note that our guidelines are not directed toward a single case but rather identify the decisionmaking processes necessary to reach outcomes in a type of case. It is apparent from our decision today that the right of an individual to refuse treatment is not absolute but is, rather, a right to be counterbalanced against State interests. The proper balance to be struck in a given situation can only be determined after examining the specifically defined and precisely articulated interests of those who are or will be actually affected by the decision. The weight to be afforded these interests is impossible to predetermine, and the balance will vary according to the circumstances of those asserting the interests. For these reasons, we decline to strike the balance in any individual case. Specifically, we decline to rule on the right of patients confined against their will to State hospitals to refuse antipsychotic medication. We do not mean to imply that these patients' rights are wholly unprotected or that
The ward in this case, though institutionalized at the time the temporary guardian was appointed, is currently living at home and has done so for many months. Indeed, the two occasions on which he was institutionalized were for observation and report pursuant to G.L.c. 123, §§ 15 (b) and 16 (a), and were not involuntary civil commitments. The guardian cannot now institutionalize the ward unless he establishes beyond a reasonable doubt that failure to commit would create a likelihood of serious harm. Doe v. Doe, 377 Mass. 272 (1979). No antipsychotic medication has yet been administered to him.
In addition to observing that it would be improper to establish the extent to which persons other than a noninstitutionalized individual in a nonemergency situation are entitled to a judicial substituted judgment determination, we wish to emphasize as well that in this case we treat the ward's right to a determination only in so far as it concerns antipsychotic medication. The spectrum of medical care available to individuals and the diverse circumstances in which it may be administered do not permit us to make universal rules in anticipation of cases involving different treatment or different circumstances. Even when a medical treatment decision is confined to a single set of circumstances, it is often difficult to formulate and apply a uniform and predictable standard. Compare Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728 (1977), with Matter of Dinnerstein, 6 Mass.App.Ct. 466 (1978). See also Matter of Spring, 380 Mass. 629, 637 (1980).
Our guidelines make clear that if the guardian seasonably petitions the Probate Court for an order directing the administration of antipsychotic medication to the ward, then the petition should receive prompt and full consideration.
"1. [Richard Roe], III suffers from Schizophrenia-Paranoid Type.
"2. [Richard Roe], III is psychotic.
"7. [Richard Roe], III does not understand or comprehend his mental illness and has no insight into his mental illness.
"8. [Richard Roe], III is incapable of understanding the benefits and detriments of antipsychotic drug treatment.
"13. Without the use of psychotropic medication or antipsychotic medication in connection with the treatment of [Richard Roe], III, his mental illness and condition will deteriorate and become chronic and the likelihood of improvement will substantially diminish.
"14. [Richard Roe,] Jr., is a suitable person to be appointed the permanent guardian of [Richard Roe], III."
The Supreme Court of New Jersey reasoned that a court "must ensure that the law does not allow abuse to continue." In re Grady, supra. We agree. The power of the State — and those empowered to act by the State — to administer mind-altering medication must be carefully circumscribed by guidelines and closely scrutinized for abuse. "Whatever powers the Constitution has granted our government, involuntary mind control is not one of them, absent extraordinary circumstances." Rogers I, supra at 1367.