We are asked to respond to nine questions certified by the United States Court of Appeals for the First Circuit which focus on the right of involuntarily committed mental patients to refuse treatment, and the standards and procedures which must be followed to treat those patients with antipsychotic medication.
We summarize the facts and procedural background of the case.
Three days after the complaint was filed, a Federal District Court judge issued a temporary restraining order, prohibiting the seclusion and antipsychotic medication of hospital patients in nonemergency situations without the consent of the patient or a guardian. After trial, the judge denied damages because the defendants' medication and seclusion practices were in accordance with acceptable medical standards. Rogers v. Okin, 478 F.Supp. 1342, 1380-1389 (D. Mass. 1979) (hereinafter cited as Rogers I).
However, the judge determined that mental patients not adjudicated incompetent have a constitutional right to refuse treatment in nonemergency situations, and that the same right extends to incompetent patients, for whom the treatment decision should be made by a guardian using a substituted judgment standard. Id. at 1361-1368. The judge therefore enjoined the defendants from forcibly medicating patients except in an "emergency," which the judge defined as "circumstances in which a failure to [medicate
The defendants appealed the decision enjoining forcible medication of patients absent an emergency. The plaintiffs cross appealed from the denial of their claims for damages. The Court of Appeals affirmed the denial of the damage claims, but vacated and remanded the issue of injunctive relief in light of its opinion. Rogers v. Okin, 634 F.2d 650 (1st Cir.1980) (hereinafter cited as Rogers II).
In its opinion, the court concluded that the mentally ill have a constitutionally protected right to decide whether to be treated with antipsychotic drugs, id. at 653, and that involuntarily committed patients are presumed to be competent to assert that right in their own behalf, id. at 658-659. However, that court modified the trial judge's decision in two respects. First, it determined that the "substantial likelihood of physical harm" standard, application of which the judge required prior to forcible administration of antipsychotic medication, is too narrow, and that the hospital physicians could use their discretion in deciding to administer drugs forcibly, after balancing the interests of the patients against the State's police power interest in preventing violence within the institution. The court remanded for the District Court to design procedures to ensure that patient interests would be adequately protected. Id. at 656-657. Second, the Court of Appeals concluded that the judge's definition of an "emergency" in which a patient could be treated against his will was too limited. The Court of Appeals expanded the meaning of emergencies to include those situations in which an incompetent patient's health would significantly deteriorate without medication. Id. at 659-660. The case was remanded on this issue for the judge's consideration of expeditious methods for determining incompetence when delay would be harmful. Id. Furthermore, the court held that the Commonwealth need not seek
The United States Supreme Court granted the defendants' petition for a writ of certiorari, in which they sought review of the Court of Appeals' decision on the issue of forcible medication of involuntarily committed patients. In mid-1982, the Supreme Court vacated the judgment and remanded the case to the Court of Appeals for a determination of the extent to which the patients' substantive and procedural rights are protected under Massachusetts law, thus declining to reach the constitutional issues unnecessarily. Mills v. Rogers, 457 U.S. 291, 305 (1982).
Questions 1, 2, and 3. Competence of involuntarily committed patients to make treatment decisions; judicial determination of incompetence.
The first two definitions of likelihood of serious harm "provide no adjudication of judgmental capacity; commitment is based on a determination of risk of physical harm to the individual or to others." Rogers II, supra at 658. Put simply, such a commitment is for public safety purposes and does not reflect lack of judgmental capacity. The third definition, although more relevant to the person's judgmental abilities, says nothing concerning his competence to make treatment decisions. A person may be competent to make some decisions, but not others. Matter of Moe, 385 Mass. 555, 567-568 (1982). See Developments in the Law — Civil Commitment of the Mentally Ill, 87 Harv. L. Rev. 1190, 1214 (1974). Furthermore, as the Court of Appeals noted, there is no way to pinpoint those patients committed under the third definition. Thus, "under the statutory scheme any given individual might have been committed despite the fact that he competently believed that treatment was not in
A determination of incompetence, on the other hand, is made by a judge who appoints a guardian only after he finds the person "incapable of taking care of himself by reason of mental illness." G.L.c. 201, § 6, as amended through St. 1978, c. 478, § 94. Thus, the statutes, as worded, comprehend the competence of an involuntarily committed mental patient to make treatment decisions. The fact that G.L.c. 123, § 23, 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. The right of an individual "to manage his own person" necessarily encompasses the right to make basic decisions with respect to "taking care of himself," Fazio v. Fazio, 375 Mass. 394, 403 (1978), including decisions relating to the maintenance of physical and mental health. We think it clear that the right to make treatment decisions is an essential element of the patient's general right "to manage his affairs."
We conclude that a mental patient has the right to make treatment decisions and does not lose that right until the patient is adjudicated incompetent by a judge through incompetence proceedings. See G.L.c. 201, § 6. No other procedure is available for determining that a patient lacks the capacity to make treatment decisions. See Guardianship of Roe, supra at 431; Fazio v. Fazio, supra at 399; Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 755 (1977). Pursuant to G.L.c. 201, § 6, a judge may appoint a guardian for a person only if he finds after a hearing that the person "is incapable of taking care of himself by reason of mental illness." The statute provides for the appointment of temporary guardians, as well as for permanent guardians. See G.L.c. 201, § 14.
The defendants argue that they, as doctors, should be responsible for making treatment decisions for involuntarily committed patients, whether competent or not. We do not agree. "Every competent adult has a right `to forego treatment, or even cure, if it entails what for him are intolerable
We conclude that a distinct adjudication of incapacity to make treatment decisions (incompetence) must precede any determination to override patients' rights to make their own treatment decisions. See Matter of Moe, 385 Mass. 555, 567-568 (1982). Other courts have drawn similar conclusions. See, e.g., Rennie v. Klein, 653 F.2d 836, 846 (3d Cir.1981), vacated and remanded, 458 U.S. 1119 (1982); Winters v. Miller, 446 F.2d 65, 68 (2d Cir.), cert. denied, 404 U.S. 985 (1971); New York City Health & Hosps. Corp. v. Stein, 70 Misc.2d 944, 945 (N.Y. Sup. Ct. 1972); In re K.K.B., 609 P.2d 747, 749 (Okla. 1980); In re Yetter, 62 Pa. D. & C. 2d 619, 623 (1973).
Questions 4 and 5. The decision to treat incompetent mental patients with antipsychotic drugs.
A substituted-judgment decision is distinct from a decision by doctors as to what is medically in the "best interests" of the patient. Guardianship of Roe, supra at 435. "[T]he goal is to determine with as much accuracy as possible the wants and needs of the individual involved." Superintendent of Belchertown State School v. Saikewicz, supra at 750. The decision "should be that which would be made by the incompetent person, if that person were competent, but taking into account the present and future incompetency of the individual as one of the factors which would necessarily enter into the decision-making process of the competent person," id. at 752-753, and giving "the fullest possible expression to the character and circumstances of that individual," id. at 747. Use of the substituted judgment standard is not
"[O]ur prior cases have established that prior judicial approval is required before a guardian may consent to administering or withholding of proposed extraordinary medical treatment." Matter of Moe, 385 Mass. 555, 559 (1982). Since we have decided that treatment with antipsychotic drugs is such an extraordinary treatment,
The amici American Psychiatric Association and Massachusetts Psychiatric Society, arguing on behalf of the psychiatric profession, urge us not to require a substituted judgment by a judge for institutionalized incompetent mentally ill patients. They assert that if a substituted judgment is required before there can be forcible medication of involuntarily confined, incompetent patients, the decision as to substituted judgment should be made by a qualified physician and not a judge. This procedure, the so called medical model, would, the doctors claim, protect the incompetent patient's civil rights to refuse treatment,
The only relevant fact which differs between Guardianship of Roe and this case is that the incompetent patient in Guardianship of Roe was not institutionalized. The defendants
In Guardianship of Roe, 383 Mass. 415, 435-436 (1981), and in Matter of Spring, 380 Mass. 629, 637 (1980), we outlined the various factors to be considered in determining whether a judicial substituted-judgment decision is required. Five of these discussed in Guardianship of Roe, supra, were "(1) the intrusiveness of the proposed treatment, (2) the possibility of adverse side effects, (3) the absence of an emergency, (4) the nature and extent of prior judicial involvement, and (5) the likelihood of conflicting interests."
The fact that a patient has been institutionalized and declared incompetent brings into play the factor of the likelihood of conflicting interests. See Guardianship of Roe, supra at 435-436. The doctors who are attempting to treat as well as to maintain order in the hospital have interests in conflict with those of their patients who may wish to avoid medication.
We conclude that, if a patient is declared incompetent, a court must make the original substituted-judgment treatment decision and should approve a substituted judgment treatment plan. See 104 Code Mass. Regs. § 3.08 (3) (1978). After adjudication of an involuntarily committed patient as incompetent, the judge may conduct a hearing on the appropriate treatment to be administered. See Davis v. Hubbard, 506 F.Supp. 915, 938-939 (N.D. Ohio 1980). The parties "must be given adequate notice of the proceedings, an opportunity to be heard in the trial court, and to pursue an appeal." Matter of Moe, 385 Mass. 555, 566 (1982). To this end, a guardian ad litem should be appointed, and the opinions of experts gathered so that all views are available to the judge. Id. at 567. Saikewicz, supra at 756-758. The judge may delegate to a guardian the power to monitor the treatment process to ensure that the substituted-judgment treatment plan is followed.
First, the judge must examine the patient's "expressed preferences regarding treatment." Guardianship of Roe, supra at 444. If made while competent, such a preference "is entitled to great weight" unless the judge finds that the patient would have changed his opinion after reflection or in altered circumstances. Id. at 445. Even if he lacked the capacity to make his treatment decisions at the time, his expressed preference "must be treated as a critical factor in the determination of his `best interests,'" id., quoting Doe v. Doe, 377 Mass. 272, 277-279 (1979), since it is the patient's true desire that the court must ascertain.
Second, the judge must evaluate the strength of the incompetent patient's religious convictions, to the extent that they may contribute to his refusal of treatment. See Winters v. Miller, 446 F.2d 65 (2d Cir.1971); In re Boyd, 403 A.2d 744 (D.C. 1979). "[T]he 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.... While in some cases an individual's beliefs may be so absolute and unequivocal as to be conclusive in the substituted judgment determination, in other cases religious practices may be only a relatively small part of the aggregated considerations." Guardianship of Roe, supra at 445-446.
Third, the impact of the decision on the ward's family must be considered. In Guardianship of Roe, supra at 446, we indicated that this factor is primarily relevant when the patient is part of a closely knit family. The consideration of impact on the family includes the cost in money and time that the family must bear, together with any desire of the patient to minimize that burden. In addition, a patient
Fourth, the probability of adverse side effects must be considered. This includes an analysis of "the severity of these side effects, the probability that they would occur, and the circumstances in which they would be endured." Id.
Fifth, the prognosis without treatment is relevant to the substituted judgment decision. It is probable that most patients would wish to avoid a steadily worsening condition. However, the judge must again reach an individualized, subjective conclusion regarding this factor, after examining it from the "unique perspective," Saikewicz, supra at 747, of the incompetent, Guardianship of Roe, supra at 447.
Sixth, the prognosis with treatment must be examined. The likelihood of improvement or cure enhances the likelihood that an incompetent patient would accept treatment, but it is not conclusive.
Finally, the judge may review any other factors which appear relevant. Guardianship of Roe, supra at 448. See, e.g., note 15, supra, and note 26, infra. After weighing the factors, the judge must reach a substituted-judgment treatment decision. If the judge decides to order treatment with antipsychotic drugs for a committed incompetent patient, the judge should "authorize a treatment program which
Questions 6 and 7. "Police power" and the use of antipsychotic drugs.
Nevertheless, psychiatric institutions must offer protection to third persons, whether staff members or patients, and must preserve security within the institution. See Commissioner of Correction v. Myers, supra. However, when public safety and security are a consideration in the decision to administer antipsychotic drugs over a patient's objection, the "antipsychotic drugs function as chemical restraints forcibly imposed upon an unwilling individual who, if competent, would refuse such treatment." Guardianship of Roe, supra at 451. In such circumstances, the antipsychotic drug treatment is administered for the benefit of others, and the statutory and regulatory conditions for the use of chemical restraints must be followed.
General Laws c. 123, § 21, as amended by St. 1978, c. 367, § 71F, requires that State mental health patients may be restrained "only in cases of emergency such as the occurrence of, or serious threat of, extreme violence, personal injury, or attempted suicide."
Consistent with G.L.c. 123, § 21, the Massachusetts Department of Mental Health has adopted regulations on the use of seclusion and restraint. In 104 Code Mass. Regs. § 3.12 (2) (1978), those regulations state: "Restraint or seclusion of patients may be used only in emergency situations where there is the occurrence or serious threat of extreme violence, personal injury, or attempted suicide." "Restraint" is defined in 104 Code Mass. Regs. § 3.12 (3) (1978) to include mechanical, chemical, and therapeutic restraints. Authorization for the use of seclusion or restraint must be made in advance and in writing by the head of the hospital or a designated physician, and the person authorizing the restraint must also sign the treatment form, pursuant to 104 Code Mass. Regs. § 3.12 (5) (1978). If the head of the hospital or his designee is not available, only nonchemical restraints may be used. Record keeping and other requirements are detailed elsewhere in 104 Code Mass. Regs. § 3.12 (1978).
The use of chemicals to restrain State mental patients is limited to emergencies in which the patient harms, or threatens to harm, himself or others. See note 25, supra. We know of no reason why these rules regarding restraint should not be followed. The defendants suggest none. The statutes and regulations are clearly intended to set forth the exclusive means for use of chemical restraints, which include antipsychotic drugs. Use of the word "only" in G.L.c. 123, § 21, means "for no other purpose." Webster's New Int'l Dictionary 1703 (2d ed. 1959). The statutory language permits the use of antipsychotic drugs as restraints only in specific, limited circumstances and does not allow expansion by doctors or courts.
We conclude that only if a patient poses an imminent threat of harm to himself or others, and only if there is no less intrusive alternative to antipsychotic drugs, may the Commonwealth invoke its police powers without prior court
Questions 8 and 9. Forcible antipsychotic medication essential to prevent "immediate, substantial, and irreversible deterioration of a serious mental illness."
However, the State may, in rare circumstances, override a patient's refusal of medication under its so called "parens patriae" powers, even though no threat of violence exists. A patient may be treated against his will to prevent the "immediate, substantial, and irreversible deterioration of a serious mental illness," Guardianship of Roe, supra at 441, in
In such a situation, interim treatment may be given to an incompetent patient, or to one whom doctors, in the exercise of their professional judgment, believe to be incompetent. If a patient is medicated in order to avoid the "immediate, substantial, and irreversible deterioration of a serious mental illness," Guardianship of Roe, supra at 441, and the doctors determine that the antipsychotic medication should continue and the patient objects, the doctors must seek an adjudication of incompetence
Conclusion. Our answers to the certified questions are:
1. The involuntary commitment of a mental patient is not a determination that he is incompetent to make treatment decisions.
2. Incompetence must be determined by a judge in accordance with the statutory provisions.
3. Competency and substituted-judgment determinations may be made in a Probate Court, the Superior Court, a Juvenile Court, or a juvenile session of a District Court.
4. A substituted judgment treatment decision must be made for an involuntarily committed patient who has been adjudicated to be incompetent before the patient can be forcibly medicated with antipsychotic drugs.
5. A judge must make the substituted-judgment decision and should approve a treatment plan after notice and a
6. In a nonemergency situation, no State interest is sufficiently compelling to overcome a patient's decision to refuse treatment with antipsychotic drugs.
7. The Commonwealth's police power permits forcible medication as a chemical restraint over a patient's objection in an emergency. Such use must comply with G.L.c. 123, § 21, and 104 Code Mass. Regs. § 3.12 (1978).
8. Forcible treatment with antipsychotic drugs may be given to a patient to prevent the "immediate, substantial, and irreversible deterioration of a serious mental illness."
9. If the doctors determine that administration of the antipsychotic drugs, prescribed to prevent the "immediate, substantial, and irreversible deterioration of a serious mental illness," should continue, they must seek an adjudication of incompetency, and if the patient is adjudicated incompetent, a substituted-judgment treatment plan.
We appreciate the helpful analysis of the issues in amicus curiae briefs by: the American Orthopsychiatric Association, the Mental Health Association, and the Civil Liberties Union of Massachusetts; the American Psychiatric Association, and the Massachusetts Psychiatric Society; the American Psychological Association; the Mental Health Legal Advisors Committee; and the New Jersey Department of the Public Advocate, Division of Mental Health Advocacy.
"1. Under state law, does the civil involuntary commitment of a person to a mental institution constitute a determination of incompetency to make treatment decisions?
"2. If not, does state law, in the absence of an emergency justifying exercise of the state's police power or an imminent threat to a patient's condition justifying exercise of the state's parens patriae power, require a probate court finding of incompetence and appointment of a guardian as the exclusive method for determining incompetency to make treatment decisions?
"3. If, in the circumstances described in question no. 2, probate proceedings are not the exclusive method to determine incompetency to make treatment decisions, what other procedure or procedures may be sufficient under state law?"
Although it is not determinative of any issue, we note that the hospital in this case posted a sign stating: "You have the right to: ... be informed of the risks and possible side effects of treatment, and to refuse treatment at any point." In their amicus brief, the American Psychiatric Association and the Massachusetts Psychiatric Society cite a study that states, "Permitting [patients] ... to decline medication, not as a `right' but as a matter of clinical policy, did not seriously impair their overall treatment and yielded some positive advantages." Appelbaum & Gutheil, Drug Refusal: A Study of Psychiatric Inpatients, 137 Am. J. Psychiatry 340, 345 (1980).
"4. If a proper determination of incompetency to make treatment decisions has been made, and in the absence of an emergency justifying exercise of the state's police power or an imminent threat to a patient's condition justifying exercise of the state's parens patriae power, under state law must there be a substituted judgment decision, or other decision by a person aside from the incompetent, prior to the administration of psychotropic drugs?
"5. If so, who may make such a decision, what procedures must be followed, and what factors must be considered?"
"6. Under state law, after a proper decision to refuse medication has been made, what state interest or interests would be sufficiently compelling to overcome the interest of the individual in refusing treatment with antipsychotic drugs?"
Question 7 ("Emergency Situations") is:
"7. What standards and procedures are required under state law to make a decision forcibly to medicate an involuntarily committed patient under the state's police power?"
"8. Under state law is there a parens patriae state interest in situations where the delay that would be occasioned by ordinary recourse to the properly designated decisionmaker could cause a serious deterioration in the condition of the patient?
"9. If so, under state law, what procedures must be followed and what standard of decisionmaking must be applied to those situations?"