Allmond v. Dep't of Health & Mental Hygiene

• Citation: 448 Md. 592,141 A.3d 57
• Decision Date: 11 July 2016
• Docket Number: No. 34, Sept. Term, 2015.,34, Sept. Term, 2015.
• Parties: Gary ALLMOND v. DEPARTMENT OF HEALTH AND MENTAL HYGIENE.
• Court: Court of Special Appeals of Maryland

448 Md. 592

141 A.3d 57

Gary ALLMOND

v.DEPARTMENT OF HEALTH AND MENTAL HYGIENE.

No. 34, Sept. Term, 2015.

Court of Appeals of Maryland.

July 11, 2016.

Tassity Johnson (Debra Gardner, Murnaghan Appellate Advocacy Fellow, Public Justice Center, Baltimore, MD; Laura Cain, Maryland Disability Law Center, Baltimore, MD; Ria Rochvarg, Andrew D. Carter, Katherine Bagley, Ria P. Rochvarg, P.A., Ellicott City, MD), on brief, for Appellant.

Kathleen A. Morse, Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Appellee.

Jennifer Mathis, Esq., Andrew Christy, Esq., Judge David L. Bazelon Center for Mental Health Law, Washington, DC, Paul B. DeWolfe, Esq., Public Defender, Mary J. Pizzo, Esq., Asst. Public Defender, Baltimore, MD, John Townsend Rich, Esq., Matthew S. Williams, Esq., Goodwin Procter LLP, Washington, DC, David Rocah, Esq., American Civil Liberties Union Foundation of Maryland, Baltimore, MD, for Amici Curiae brief of the American Civil Liberties Union of Maryland, the Judge David L. Bazelon Center for Mental Health Law, Mental Health Association of Maryland (MHAMD), the Freedom Center, On Our Own of Maryland, the Image Center for People with Disabilities, and the Maryland Office of the Public Defender in support of Appellant.

G. Daniel Shealer, Jr., Esq., Vice President and Gen. Counsel, The Johns Hopkins Health System Corporation, Baltimore, MD, A. Paul Pineau, Esq., Interim Vice President and Gen. Counsel, The Johns Hopkins University, Baltimore, MD, Andrew H. Baida, Esq., Rosenberg Martin Greenberg, LLP, Baltimore, MD, of Counsel, for Amici Curiae brief of the Maryland Psychiatric Society, the American Psychiatric Association, the Washington Psychiatric Society, the Johns Hopkins Health System Corporation, the Johns Hopkins University, the Sheppard Pratt Health System, Medstar Health, the University of Maryland School of Medicine Department of Psychiatry, and NAMI Maryland in support of Appellee.

Argued before BARBERA, C.J., BATTAGLIA^* , GREENE, ADKINS, McDONALD, WATTS, and GLENN T. HARRELL, Jr. (Retired, Specially Assigned), JJ.

McDONALD

, J.

The State mental health law allows for the involuntary medication of an individual committed to a mental health facility if certain procedures are followed and if a clinical review panel—three health care professionals, none of whom is the treating psychiatrist—finds that certain statutory criteria are satisfied and authorizes the involuntary medication. Such an authorization remains valid for 90 days, after which a panel must review again the relevant criteria to authorize continued medication.

The criteria for authorizing involuntary medication are set forth in Maryland Code, Health–General Article (“HG”), § 10–708(g)

. Among the circumstances in which the statute permits an individual to be medicated against the individual's will are when: (1) the medication is prescribed by a psychiatrist for the purpose of treating the individual's mental disorder; (2) the administration of the medication is a reasonable exercise of professional judgment; and (3) the individual is at substantial risk of continued hospitalization because the individual will remain seriously mentally ill with no relief, or for a significantly longer time, from the symptoms that resulted in the individual's hospitalization.

Applying those criteria, a clinical review panel authorized the forced medication of Petitioner Gary Allmond, a resident of a facility operated by Respondent Department of Health And Mental Hygiene (“DHMH”). That decision was affirmed by an administrative law judge when Mr. Allmond invoked his appeal rights under the statute. Mr. Allmond has pursued judicial review in the courts. Before us, he contends that, on its face, HG § 10–708(g)

violates the Maryland Declaration of Rights in permitting forced medication without a showing that he is dangerous to himself or others within the facility.

We hold that the statute is not unconstitutional on its face. However, we agree with Mr. Allmond that merely satisfying the challenged provisions of HG § 10–708(g)

alone does not ensure compliance with the substantive due process requirement of the Declaration of Rights. The authorization for involuntary medication may only be constitutionally carried out when there exists an “overriding justification,” such as a need to render a pretrial detainee competent for trial.

In any event, the authorization for involuntary medication in this case expired long ago. As a consequence, a clinical review panel must apply the statutory criteria in a constitutional manner if DHMH seeks again to medicate Mr. Allmond against his will.

IBackground

We describe first the involuntary medication statute that is at the heart of this case and then the facts and proceedings that bring this case to us.

A. Standards for Involuntary Medication

In order to administer psychiatric medication to an individual confined in a mental health facility against the individual's will, the facility must satisfy the standards and follow the process set out in HG § 10–708

.

First, the facility may administer medication against an individual's will in an emergency pursuant to a physician's order when the individual presents a danger to the life or safety of others in the facility. HG § 10–708(b)(1)

.

Second, and pertinent to this case, the facility may administer medication against an individual's will when the individual is hospitalized involuntarily or committed for treatment pursuant to a court order¹ and a clinical review panel approves the use of the medication for the reasons allowed by the statute. HG § 10–708(b)(2)

.

A clinical review panel is comprised of: (1) the clinical director of the psychiatric unit of the facility (if the clinical director is a physician) or a physician (if the clinical director is not), a psychiatrist, and a mental health professional other than a psychiatrist. HG § 10–708(c)(1)

. If a member of the panel is directly responsible for treating the individual, another person is to be substituted for that particular review. HG § 10–708(c)(2)

.

Among other things, the clinical review panel is to review the individual's clinical record, assist the individual and the treating physician in arriving at a mutually agreeable treatment plan, ascertain the reasons why the individual is refusing medication, and review the potential consequences of medication. HG § 10–708(f)

. If the statutory criteria are met, a panel may authorize involuntary medication for up to 90 days. HG § 10–708(m)(1).

The statute provides directions for convening and conducting a meeting of a clinical review panel. HG § 10–708(e)

. Among other things, the individual for whom medication has been recommended has the right to attend the meeting of the panel, to be assisted by a lay advisor,² to present information and witnesses, and to ask questions of others presenting information to the panel. However, the individual does not have a right to be present during the panel's deliberations. HG § 10–708(e)(2)(i), (h)(2). The panel is to base its decision on its clinical assessment of the information contained in the individual's record and the information presented to the panel. HG § 10–708(h)(1).

The individual has a right to an administrative appeal of the panel's determination before an administrative law judge (“ALJ”) of the Office of Administrative Hearings. HG § 10–708(k)

. The decision of the ALJ is considered a final decision under the contested case provisions of the State Administrative Procedure Act³ and judicial review of the ALJ's decision may be pursued in a circuit court. HG § 10–708(l ).

To approve the administration of medication against the individual's will, a clinical review panel must make certain determinations. The statute outlines those determinations as follows:

(g) The panel may approve the administration of medication or medications and may recommend and approve alternative medications if the panel determines that:

(1) The medication is prescribed by a psychiatrist for the purpose of treating the individual's mental disorder;

(2) The administration of medication represents a reasonable exercise of professional judgment; and

(3) Without the medication, the individual is at substantial risk of continued hospitalization because of:

(i) Remaining seriously mentally ill with no significant relief of the mental illness symptoms that:

1. Cause the individual to be a danger to the individual or others while in the hospital;

2. Resulted in the individual being committed to a hospital under this title or Title 3 of the Criminal Procedure Article; or

3. Would cause the individual to be a danger to the individual or others if released from the hospital;

(ii) Remaining seriously mentally ill for a significantly longer period of time with the mental illness symptoms that:

1. Cause the individual to be a danger to the individual or to others while in the hospital;

2. Resulted in the individual being committed to a hospital under this title or Title 3 of the Criminal Procedure Article; or

3. Would cause the individual to be a danger to the individual or others if released from the hospital; or

(iii) Relapsing into a condition in which the individual is unable to provide for the individual's essential human needs of health or safety.

HG § 10–708(g)

. As is evident, the first two conditions require that the treatment be medically appropriate—i.e., that it was prescribed by a psychiatrist exercising reasonable professional judgment to treat the individual's mental disorder. Those conditions are not at issue in this case.

The third condition for involuntary medication—set forth in HG § 10–708(g)(3)

—consists of three subparagraphs that parse into seven alternative criteria that may be satisfied to authorize involuntary medication of an individual. Two of those alternative criteria—HG § 10–708(g)(3)(i)(1) and HG § 10–708(g)(3)(ii)(1) —involve a finding that, without the medication, the individual's mental disorder causes the...