Guardianship of Roe, Matter of

• Decision Date: 23 April 1981
• Citation: 383 Mass. 415,421 N.E.2d 40
• Parties: In the Matter of GUARDIANSHIP OF Richard ROE, III.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 40

421 N.E.2d 40

383 Mass. 415

In the Matter of GUARDIANSHIP OF Richard ROE, III.

Supreme Judicial Court of Massachusetts, Franklin.

Argued Oct. 9, 1980.

Decided April 23, 1981.

Thomas T. Merrigan, Greenfield, guardian ad litem.

Richard Cole and Robert Burdick, Roxbury, for patients at Boston State Hospital, interveners.

Stephen Schultz, Boston, Administrative & Legal Counsel to the Atty. Gen., for Commissioner of the Massachusetts Dept. of Mental Health, intervener.

Robert D. Fleischner, Springfield, Marilyn J. Schmidt, Boston, Thomas F. O'Hare, Wellesley, Steven J. Schwartz, Northampton, and Raymond P. Bilodeau, Springfield, for Mental Health Legal Advisors Committee, & others, amici curiae, submitted a brief.

Mark I. Berson and James M. Kessler, Greenfield, for the guardian, submitted a brief.

Before HENNESSEY, C. J., and BRAUCHER, WILKINS, LIACOS and ABRAMS, JJ.

HENNESSEY, Chief Justice.

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. ¹ In reaching this conclusion, we note that our decision has distinct limits. As we discuss at length in Part III, infra, the guidelines we establish herein are applicable in circumstances in which all of the following factors exist: (1) an incompetent individual is not institutionalized; (2) a party with standing actually seeks to administer medication to the incompetent person in the absence of an emergency, which we define as an unforeseen combination of circumstances or the resulting state that calls for immediate action; and (3) the proposed medication is an antipsychotic drug ² a powerful, mind-altering drug which is accompanied by often severe and sometimes irreversible adverse side effects. As a preliminary question, we decide that the appropriate standard of proof to be applied in guardianship proceedings is the usual civil "preponderance of the evidence" standard, and that the appointment of both a temporary and a permanent guardian was warranted under the circumstances of this case. We vacate so much of the order as authorizes the guardian to consent to the forcible administration of antipsychotic medication and affirm the remainder of the order which appoints Richard Roe, Jr., as guardian of his son, Richard Roe, III.

On April 1, 1980, after a hearing on the petition of Richard Roe, Jr. (the guardian), and his wife, a judge of the Probate Court found that the guardian's son, Richard Roe, III (the ward), was a mentally ill person whose judgment was seriously impaired and who was in need of the immediate appointment of a guardian. At this hearing the ward was represented by a guardian ad litem. The judge appointed the father temporary guardian of the ward, who, since February 19, 1980, had been committed to Northampton State Hospital for observation and report in connection with complaints against him for attempted unarmed robbery and assault and battery. Since the ward was still institutionalized at the time of the hearing, the judge, relying on Rogers v. Okin, 478 F.Supp. 1342 (D.Mass.1979) (Rogers I ), aff'd in part, rev'd in part, 634 F.2d 650 (1st Cir. 1980) (Rogers II ), cert. granted, --- U.S. ----, 101 S.Ct. 1972, 68 L.Ed.2d 293(981), ^a decided that the temporary guardian had the inherent authority to consent to forcible administration of antipsychotic drugs for his ward. On April 4, 1980, prior to the implementation of such medical treatment, the guardian ad litem's motion to stay entry of judgment was allowed by the probate judge for ten days as to the administration of antipsychotic drugs. On April 11, 1980, a single justice of this court continued the stay pending further review.

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 Massachusetts 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.

In his appeal the guardian ad litem raises several issues. He first contends that the evidence was insufficient to permit the probate judge to make the findings which were used to support the appointments of both the temporary and permanent guardians, and that such evidence must be tested by the "beyond a reasonable doubt" standard of proof. He takes the further position that even if the evidence was sufficient to permit these findings, the challenged findings are insufficient as a matter of law to warrant the guardianship appointments. The guardian ad litem finally contends that even if the evidence was sufficient to support the findings, and the findings are sufficient to warrant the guardianship appointments, it was error for the probate judge to empower the guardian to consent to the forcible administration of antipsychotic drugs for the ward. For reasons we explain below, we hold that both the temporary and permanent guardianship appointments were warranted by the evidence as evaluated under the "preponderance of the evidence" standard of proof, and the findings were legally sufficient, although we agree with the guardian ad litem that to empower the guardian to consent to the challenged medical treatment was error.

I. The Guardianship Proceedings.

We summarize the material facts found by the judgment 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 year at this private school he began to abuse alcohol, marihuana, and LSD, and he became withdrawn and seclusive. The ward's academic performance deteriorated and, as a result of his drinking and other behavior, he was expelled from the private school. He subsequently returned to the public school system, but his performance was so poor that he left the school without graduating.

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 ³ robbery and assault and battery. While so institutionalized, the ward attacked another patient for no apparent reason and had to be restrained by hospital attendants. He was diagnosed as suffering from schizophrenia, paranoid type, and it was recommended that he be treated with antipsychotic medication. The ward refused all drugs, as he had on many previous occasions, and refused as well to engage in psychotherapy. This refusal to accept antipsychotic medication was based on the ward's prior experiences with illicit drugs which, among other things, caused him to be involved in an automobile accident. The guardian ad litem strongly contends that another factor in this refusal was the ward's acceptance of certain tenets of the Christian Science faith, and there was evidence which might support such a contention, although the judge concluded otherwise.

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...