Disability Rights N.J., Inc. v. Comm'r, 13-4255

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtHARDIMAN, Circuit Judge.
PartiesDISABILITY RIGHTS NEW JERSEY, INC., A New Jersey Nonprofit Corporation v. COMMISSIONER, NEW JERSEY DEPARTMENT OF HUMAN SERVICES; COMMISSIONER, NEW JERSEY DEPARTMENT OF HEALTH AND SENIOR SERVICES; STATE OF NEW JERSEY Disability Rights New Jersey, Inc., Appellant in No. 13-4255 Commissioner, New Jersey Department of Human Services; State of New Jersey, Appellants in No. 13-4405
Docket NumberNo. 13-4405,No. 13-4255,13-4255,13-4405
Decision Date04 August 2015

DISABILITY RIGHTS NEW JERSEY, INC., A New Jersey Nonprofit Corporation
Disability Rights New Jersey, Inc., Appellant in No. 13-4255
Commissioner, New Jersey Department of Human Services;
State of New Jersey, Appellants in No. 13-4405

No. 13-4255
No. 13-4405


Argued November 18, 2014
August 4, 2015


On Appeal from the United States District Court for the District of New Jersey
(D.C. No. 10-cv-03950)
District Judge: Honorable Dickinson R. Debevoise

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Before: SMITH, HARDIMAN and BARRY, Circuit Judges.

Nathan S. Mammen (Argued)
John C. O'Quinn
Kirkland & Ellis
655 15th Street, N.W.
Suite 1200
Washington, DC 20005

William E. Dwyer
Disability Rights New Jersey
210 South Broad Street, 3rd Floor
Trenton, NJ 08608

David E. Myre
Samara L. Penn
Kirkland & Ellis
601 Lexington Avenue
New York, NY 10022
Attorneys for Appellant/Cross-Appellee Disability
Rights New Jersey, Inc.

Stuart M. Feinblatt (Argued)
Gerard A. Hughes
Office of Attorney General of New Jersey
25 Market Street
Richard J. Hughes Justice Complex
Trenton, NJ 08625
Attorneys for Appellees/Cross-Appellants State of New
Jersey et al.

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HARDIMAN, Circuit Judge.

These cross-appeals require us to decide whether mentally ill residents of New Jersey who have been committed to state custody are entitled to judicial process before they may be forcibly medicated in nonemergency situations. At issue is Administrative Bulletin 5:04B, a procedure regulating the forcible administration of psychotropic drugs in New Jersey psychiatric hospitals, and its validity under the Americans with Disabilities Act and the United States Constitution. The District Court held that AB 5:04B is valid, except as to patients who have been found by a court not to require continued commitment but who remain in custody pending transfer. Disability Rights N.J., Inc. v. Velez, 974 F. Supp. 2d 705 (D.N.J. 2013). We will affirm the result reached by the District Court, though not for all its stated reasons.


The New Jersey Department of Human Services operates four psychiatric hospitals that house civilly committed adults and those who have been found incompetent to stand trial or not guilty by reason of insanity. See N.J. Stat. Ann. § 30:1-7. Temporary civil commitment may be ordered by a New Jersey court only upon a showing of probable cause to believe that the person is "in need of involuntary commitment to treatment," id. § 30:4-27.10(g),

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which means that he is dangerous to himself, others, or property by reason of mental illness and is unwilling to accept treatment voluntarily, id. § 30:4-27.2(m). Within 20 days of the patient's initial admission to a facility, the court must hold a final commitment hearing at which the State must make the same showing by clear and convincing evidence in order to prolong the commitment. Id. § 30:4-27.15(a); N.J. Ct. R. 4:74-7(c)(1).

The final hearings occur at New Jersey's psychiatric hospitals but have many of the trappings of conventional judicial proceedings. Each patient has the right to be represented by counsel, to be present at the hearing, to present evidence, and to cross-examine witnesses. N.J. Stat. Ann. § 30:4-27.14; N.J. Ct. R. 4:74-7(e). A psychiatrist on the patient's treatment team who has examined the patient within five days of the hearing must testify. N.J. Ct. R. 4:74-7(e). Commitment hearings take place one or two days per week at each hospital, and most are uncontested and brief.

If a patient is committed, his status is subject to judicial review three months after the final hearing and periodically thereafter. N.J. Stat. Ann. § 30:4-27.16(a). At every review hearing, the State is required to prove by clear and convincing evidence that the involuntary commitment standard remains satisfied. Id. If the court concludes that the patient no longer requires commitment, it can order him discharged or enter a judgment of "conditional extension pending placement" (CEPP). N.J. Ct. R. 4:74-7(h)(1)-(2). Patients on CEPP status remain in the hospital only because an appropriate alternative placement is unavailable; their status is reviewed within 60 days of the CEPP order's issuance and then periodically at intervals no longer than six months. N.J. Ct. R. 4:74-7(h)(2).

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The recent history of civil commitment of the mentally ill in this country is inextricably linked with the development of psychotropic drugs—antipsychotics, antidepressants, mood stabilizers, and the like. According to an expert report submitted to the District Court, effective psychotropic medications emerged in the 1950s and "rapidly became a mainstay of treatment" in psychiatric hospitals "because of their effectiveness in reducing or eliminating psychotic symptoms, including delusions, hallucinations, disordered thinking and speech, and disruptive and aggressive behavior." App. 468 (report of Dr. Paul S. Appelbaum). Witnesses testified that the proper use of psychotropic drugs is "an almost essential component of treatment for a patient who is severely enough disturbed to require involuntary hospitalization," App. 765, and agreed that "psychotropic medications are almost universally a part of successful treatment for patients in psychiatric hospitals," App. 781.

For all their benefits, psychotropic drugs can cause serious side effects, including muscle cramps, dizziness, metabolic syndrome, parkinsonism, akathesia (motor restlessness), dystonia (involuntary muscle contractions), and tardive dyskinesia (involuntary movement of the limbs or facial muscles). Disability Rights alleges that side effects that have been observed in New Jersey's psychiatric hospitals include fatigue, difficulty walking, confusion, anxiety, sexual dysfunction, and allergic or toxic reactions to the drugs. For these reasons (and perhaps others), significant numbers of civilly committed psychiatric patients refuse to take psychotropic medication voluntarily, however beneficial it might be from a clinical perspective. In 2011 and 2012,

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between 29 and 48 patients were on "refusing status" and subject to forcible medication at each of the State's four psychiatric hospitals. App. 1144.

The Supreme Court has never decided whether civilly committed individuals have a constitutional right to refuse psychotropic drugs. It issued a writ of certiorari in 1981 in a case posing this question, but an intervening state court decision ultimately prevented the Court from reaching the merits. Mills v. Rogers, 457 U.S. 291 (1982). And although the Court has spoken time and again on the right to refuse unwanted treatment generally, it has not addressed this issue in the civil commitment context. See, e.g., Sell v. United States, 539 U.S. 166 (2003) (concerning the right of a criminal defendant to refuse antipsychotic medication intended to render him competent to stand trial); Washington v. Harper, 494 U.S. 210 (1990) (concerning the due process rights of prisoners subject to forcible medication for mental illness); Parham v. J. R., 442 U.S. 584 (1979) (concerning the due process rights of children institutionalized for mental health care). In Harper, the most relevant of these cases for our purposes, the Court held that the Due Process Clause permits a State to forcibly medicate a dangerous, mentally ill prisoner without providing a judicial hearing as long as certain "essential procedural protections" are provided. 494 U.S. at 236.

Unlike the Supreme Court, we have squarely addressed the right of civilly committed psychiatric patients to refuse psychotropic drugs. In 1977, a man involuntarily committed to a psychiatric hospital in New Jersey filed suit in federal court challenging the State's use of forcible medication in nonemergency situations. Rennie v. Klein, 462 F. Supp. 1131, 1134 (D.N.J. 1978). Shortly thereafter, New

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Jersey adopted Administrative Bulletin 78-3, which became known as the "Rennie process" and generally consisted of three steps:

[1] At the first level, when a patient refuses to accept medication, the treating physician must explain to the patient the nature of his condition, the rationale for using the particular drug, and the risks or benefits of it as well as those of alternative treatments. [2] If the patient still declines, the matter is discussed at a meeting of the patient's treatment team, which is composed of the treating physician and other hospital personnel, such as psychologists, social workers, and nurses who have regular contact with the patient. The patient is to be present at this meeting if his condition permits.

[3] If, after the team meeting, the impasse remains, the medical director of the hospital or his designee must personally examine the patient and review the record. In the event the director agrees with the physician's assessment of the need for involuntary treatment, medication may then be administered. The medical director is also authorized, but not required, to retain an independent psychiatrist to evaluate the patient's need for medication. Finally, the director is required to make a weekly review of the treatment program of each patient who is being drugged against his will to determine whether the compulsory treatment is still necessary.

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Rennie v. Klein (...

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