Harper v. State

• Decision Date: 07 July 1988
• Docket Number: No. 54045-4,54045-4
• Citation: 110 Wn.2d 873,759 P.2d 358
• Parties: Walter HARPER, Appellant, v. STATE of Washington, Respondent.
• Court: Washington Supreme Court

Page 873

110 Wn.2d 873

759 P.2d 358

Walter HARPER, Appellant, v. STATE of Washington, Respondent.

No. 54045-4.

Supreme Court of Washington,

En Banc.

July 7, 1988.

Brian Reed Phillips, Everett, for appellant.

Ken Eikenberry, Atty. Gen., Glenn L. Harvey, Asst., Dept. of Corrections, Olympia, for respondent.

John H. Hertog, Jr., Neil R. Sarles, Seattle, amicus curiae for American Civil Liberties Union for appellant.

James F. Pultz, Robert A. Stalker, Jr., Tacoma, amicus curiae for Evergreen Legal Services & Institutional Legal Services for appellant.

William Salen, George Yeannakis, Seattle, amicus curiae for Seattle-King County Public Defender Ass'n for appellant.

BRACHTENBACH, Justice.

Is a prisoner entitled to a judicial hearing before antipsychotic drugs can be administered against his will? The trial court answered no. We accepted direct review and reverse.

The facts are undisputed. Convicted of robbery, appellant Harper was sentenced in 1976 to the Washington State Penitentiary in Walla Walla. Between 1976 and 1980, Harper was housed primarily in the mental health unit there, where he voluntarily underwent antipsychotic drug therapy. Harper was transferred periodically to Eastern State Hospital for evaluation and treatment.

Harper was paroled in 1980 on condition that he participate in psychiatric treatment. He spent some of his parole time in the psychiatric ward at Harborview Medical Center in Seattle, and part at Western State Hospital, pursuant to a civil commitment order. In December 1981, Harper's parole was revoked after he assaulted two nurses at Saint Cabrini Hospital in Seattle.

Following his return to prison, Harper was sent to the Special Offenders Center (SOC) at Monroe in January 1982. The SOC is a 144-bed correctional institution administered by the Department of Corrections. The SOC was established to provide diagnosis and treatment of convicted felons having serious behavioral or mental disorders. Approximately 27 inmates at the SOC receive involuntary medication.

While at the SOC, Harper voluntarily submitted to treatment, including administration of antipsychotic medications. In November 1982, Harper refused to continue taking the prescribed antipsychotic drugs. At Harper's treating physician's request, a hearing committee was convened to determine whether medication should be administered to Harper against his will. Harper does not dispute that the hearing took place in accord with SOC policy. The committee found that, as a result of mental disease or disorder, Harper was a danger to others. The committee authorized Harper's involuntary medication. Harper appealed the decision to the Monroe reformatory superintendent, who upheld the committee's decision.

Between November 1982 and June 1985, Harper was involuntarily medicated with a variety of antipsychotic drugs. During this period, Harper's treatment was reviewed by the committee approximately every 2 weeks. Each time, the committee decided to continue the medications, although the dosages or drugs were sometimes changed.

In February 1985, Harper filed this action for injunctive and monetary relief against the State ¹ for its administration of antipsychotic medications to him pursuant to SOC's involuntary medication policy. Harper was not present when the case was heard in superior court. Following trial the court dismissed Harper's complaint. Harper appealed directly to this court.

Harper does not dispute that the State followed the SOC involuntary medication policy. Instead, he contends that the policy fails to provide adequate due process protection because it allows the State to decide to administer antipsychotic medication against his will without a judicial hearing. ²

I

Initially, we agree with the trial court's conclusion that Harper had a protected liberty interest in refusing antipsychotic drug treatment. ³ See Conclusion of law 1. Clerk's Papers, at 18. We have recognized that competent adults have a right to determine what shall be done to their bodies. In re Schuoler, 106 Wash.2d 500, 506, 723 P.2d 1103 (1986); In re Ingram, 102 Wash.2d 827, 836, 689 P.2d 1363 (1984); In re Colyer, 99 Wash.2d 114, 119, 660 P.2d 738 (1983). We also have specifically recognized a right to refuse electroconvulsive therapy. In re Schuoler, supra.

In Schuoler, the plaintiff was involuntarily committed because of severe mental problems. At her commitment hearing, her treating psychiatrist asked the court to authorize electroconvulsive therapy (ECT), which the plaintiff had refused to undergo. Following a separate hearing on the issue, the trial court authorized ECT. This court reversed, holding that "a person involuntarily committed due to a mental disorder retains a fundamental liberty interest in refusing ECT." Schuoler, 106 Wash.2d at 507, 723 P.2d 1103. We noted that the right to refuse ECT was especially important because ECT is a highly intrusive medical procedure with well documented adverse side effects such as memory loss and impairment of learning ability. See Schuoler, at 506, 732 P.2d 1103.

Like ECT, antipsychotic drug therapy is a highly intrusive form of medical treatment. See Guardianship of Roe, 383 Mass. 415, 436-37, 421 N.E.2d 40 (1981). Antipsychotic drugs are by intention mind altering; they are meant to act upon the thought processes. Riese v. St. Mary's Hosp. and Med. Ctr., 196 Cal.App.3d 1388, 243 Cal.Rptr. 241 (1987); Guardianship of Roe, supra.

The benefits of antipsychotic drug treatment to acutely ill patients are well documented. See Goodman & Gilman's, The Pharmacological Basis of Therapeutics 152, 172-74 (6th ed.1980). Also documented, however, are the adverse side effects of antipsychotic drug treatment. Less serious, reversible, side effects include dystonia, a severe involuntary spasm of the upper body, throat, tongue or eyes; akathesia, the inability to remain still, restlessness and agitation; and pseudo-Parkinsonism, manifested by a mask-like face, drooling, muscle rigidity, stiffness, tremors and a shuffling gait. ⁴ See Findings of fact 9, Clerk's Papers, at 11; Kemna, Current Status of Institutionalized Mental Health Patients' Right to Refuse Psychotropic Drugs, 6 J. Legal Med. 107, 111-113 (1985); Goodman & Gilman's, supra, at 164-172. Although common, these effects can be controlled by administration of other drugs, adjustment of the dosage, or termination of the therapy. Kemna, at 112; Goodman & Gilman's, at 164-172. Severe and potentially permanent is tardive dyskinesia, an irreversible neurological disorder characterized by involuntary, uncontrollable movements of the tongue, mouth or jaw. Fingers, arms and legs may also be affected. Tardive dyskinesia can be masked by the drug causing the condition, and can manifest itself years after treatment has occurred. See Finding of fact 9, Clerk's Papers, at 11; Kemna, supra, at 113.

We find that antipsychotic drug treatment is no less intrusive than ECT. Therefore, we recognize a fundamental liberty interest in refusing antipsychotic drug treatment as well. Other courts have reached similar conclusions. See, e.g., Riese v. St. Mary's Hosp. and Med. Ctr., supra; People v. Medina, 705 P.2d 961, 967 (Colo.1985); Rogers v. Commissioner of Dep't of Mental Health, 390 Mass. 489, 458 N.E.2d 308 (1983); Guardianship of Roe, supra 383 Mass. at 436-37, 421 N.E.2d 40 ("few legitimate medical procedures ... are more intrusive than the forcible injection of antipsychotic medication.... Because of both the profound effect that these drugs have on the thought processes ... and the well-established likelihood of severe and irreversible adverse side effects ... we treat these drugs in the same manner we would treat psychosurgery or electroconvulsive therapy").

II

The State argues that Harper's liberty interest in refusing treatment was adequately protected by the existing SOC involuntary medication policy. The trial court agreed. See Conclusion of law 3, Clerk's Papers, at 66.

The SOC involuntary medication policy provides for a hearing prior to the administration of antipsychotic drugs. See generally, Finding of fact 3, Clerk's Papers, at 8-11. Hearings are held before a committee composed of a psychiatrist, a psychologist, and the SOC associate superintendent. Finding of fact 3(b), Clerk's Papers, at 9. A prisoner can be medicated against his will if a majority ⁵ of the committee finds that he suffers from a mental disorder gravely disabling him or causing him to present a likelihood of serious harm to himself or others. Finding of fact 3(a), Clerk's Papers, at 9.

The policy grants the following procedural protections: 24-hour notice of the SOC's intent to convene an involuntary medication hearing; the right to be present and to present evidence, including witnesses; the right to cross-examine the staff witnesses; the assistance of a lay advisor; the right to appeal the decision to the SOC superintendent; and the right to periodic reviews subsequent to the initial hearing. Finding of fact 3, Clerk's Papers, at 8-11.

The policy does not allow representation by counsel. Finding of fact 7, Clerk's Papers, at 14. The rules of evidence do not apply. The policy does not provide for review of the committee's decision, except by personal restraint petition or extraordinary writ to the superior court. See Conclusion of law 2, Clerk's Papers, at 18. Also, although a prisoner's treating physician who has recommended the involuntary medication cannot sit on the initial committee, he can sit on subsequent panels reviewing continued treatment if he is at that time no longer the treating physician, creating a conflict of interest the policy apparently meant to avoid. See Findings of fact 6, 7, Clerk's Papers, at 13-15.

Prior to an involuntary medication hearing, committee members consult with the SOC staff outside the presence of the prisoner to determine whether policy requirements have been met and what the staff's position will be at the hearing....