Hightower by Dehler v. Olmstead

• Decision Date: 30 September 1996
• Docket Number: Civil Action File No. 1:93CV641JTC.
• Citation: 959 F.Supp. 1549
• Parties: Ronnie E. HIGHTOWER, by Mark F. DEHLER as guardian ad litem and next friend, Donald Ruff, Sylvia Butts and Joy Shepard on behalf of themselves and all others similarly situated, Plaintiffs, v. Tommy OLMSTEAD, individually and in his official capacity as Commissioner of the Georgia Department of Human Resources, et al., Defendants.
• Court: U.S. District Court — Northern District of Georgia

959 F.Supp. 1549

Ronnie E. HIGHTOWER, by Mark F. DEHLER as guardian ad litem and next friend, Donald Ruff, Sylvia Butts and Joy Shepard on behalf of themselves and all others similarly situated, Plaintiffs, v. Tommy OLMSTEAD, individually and in his official capacity as Commissioner of the Georgia Department of Human Resources, et al., Defendants.

Civil Action File No. 1:93CV641JTC.

United States District Court, N.D. Georgia, Atlanta Division.

September 30, 1996.

COPYRIGHT MATERIAL OMITTED

Beverly Patricia Downing, Office of State Attorney General, Atlanta, GA, for movant Charter Lake Hosp. and defendant Roland.

George Pennebaker, Office of George Pennebaker, Dallas, GA, Susan C. Jamieson, Atlanta Legal Aid Society, DeKalb County Regional Office, Decatur, GA, Phyllis J. Holmen, Torin Dana Togut, Lisa Jane Krisher, Georgia Legal Services Program, Central Office, Gerald R. Weber, American Civil Liberties Union, Nancy Lord, Office of Nancy Lord, Atlanta, GA, Howard Gary Sokol, Georgia Legal Services, Macon, GA, for plaintiff Ronnie E. Hightower.

Jonathan A. Zimring, Zimring & Ellin, Atlanta, GA, for plaintiff Joy Shepard.

Susan C. Jamieson, Atlanta Legal Aid Society, DeKalb County Regional Office, Decatur, GA, Phyllis J. Holmen, Torin Dana Togut, Lisa Jane Krisher, Georgia Legal Services Program, Central Office, Jonathan A. Zimring, Zimring & Ellin, Gerald R. Weber, American Civil Liberties Union, Nancy Lord, Office of Nancy Lord, Atlanta, GA, Howard Gary Sokol, Georgia Legal Services, Macon, GA, for plaintiff Donald Ruff.

George Pennebaker, Office of George Pennebaker, Dallas, GA, for plaintiff Sylvia Butts.

Beverly Patricia Downing, Carol Atha Cosgrove, William C. Joy, Office of State Attorney General, Atlanta, GA, Jefferson James Davis, Davis & Davis, Decatur, GA, for defendant David L. Evans.

Jefferson James Davis, Davis & Davis, Decatur, GA, for defendants James W. Mimbs, M.D., Jose Roberts Flores, M.D., George Grant, M.D., James B. Bradley, M.D., Foster Brin, M.D., Anita-Rae Smith, M.D.

Beverly Patricia Downing, Carol Atha Cosgrove, William C. Joy, Office of State Attorney General, Jefferson Davis, Jr., Kilpatrick

Stockton, Atlanta, GA, for defendants Britton Dennis, Tommy Olmstead.

ORDER

CAMP, District Judge.

This action is before the Court on Defendants' Motion for Summary Judgment [# 93-1], and Plaintiffs' Motion to Correct Clerical Mistake [# 101-1]. Parties argued the present motion for summary judgment before the Court on June 7, 1996.

I: FACTS

A) Background

This suit is a class action brought by a group of mental patients at a state mental hospital to enjoin the allegedly unlawful administration of antipsychotic (also called neuroleptic or psychotropic) drugs. In the instant case, psychotropic medication represents antipsychotic, antimanic, antidepressant, antianxiety, and antiobsessive drugs. (Policy Memo Sec. II, IA).

Psychotropic drugs are a large class of drugs which affect mental activity.¹ These drugs, including Thorazine, Mellaril, Prolixin, Haldol, and Ativan, are used to treat schizophrenia and other serious psychotic disorders. They reduce the symptoms of hallucinations, delusions, paranoid ideation, and disturbed mental thought in patients. "The purpose of the drugs is to alter the chemical balance in a patient's brain, leading to changes, intended to be beneficial, in his or her cognitive processes." Washington v. Harper, 494 U.S. 210, 229, 110 S.Ct. 1028, 1041, 108 L.Ed.2d 178 (1990). Thus, the drugs are "mind-altering." Mills v. Rogers, 457 U.S. 291, 293 n. 1, 102 S.Ct. 2442, 2445 n. 1, 73 L.Ed.2d 16 (1982). Many medical authorities consider these drugs to be the primary treatment for acute and chronic mental disorders.

On the other hand, psychotropic drugs also involve a risk of adverse side effects. Such side effects range from short-term discomforts, such as temporary sleepiness or dry mouth, to severe and possibly long-term impairments, referred to as "extrapyramidal side effects." These more severe side effects include dyskinesia (involuntary movements of the muscles in the face, arm, and legs), akathesia (motor restlessness and anxiety), akinesia (unspontaneous or retarded movement), and dystonia (involuntary facial and tongue contractions).

One of the serious side effects is tardive dyskinesia, which involves involuntary movements of face, arm, and leg muscles. This condition does not generally respond to treatment and can persist after psychotropic drug use is discontinued. There is currently no way to predict who will develop dyskinesia or other severe side effects.

B) This Litigation

The Plaintiff class is made up of current and former patients at Central State Hospital in Millegeville, Georgia. Central State Hospital (CSH) is operated by the Georgia Department of Human Resources for the treatment of persons with mental illness, mental retardation, or substance abuse problems. Plaintiffs brought suit as a class to prevent doctors at CSH from medicating them with psychotropic drugs without their consent. Defendants include physicians at CSH and officials of the Georgia Department of Human Resources. Plaintiffs claim that state officials (1) did not properly inform them of the risks and benefits of medication before seeking consent to administer the drugs, and (2) failed to provide standards or procedural safeguards for continuing forced medication when consent is not given. The class is limited to injunctive and declaratory relief. The named Plaintiffs also seek damages as individuals.

C) Georgia Law on the Rights of the Mentally Ill

Plaintiffs argue that Georgia law provides insufficient substantive and procedural safeguards to protect their rights under federal law. Plaintiffs argue that two specific statutes are unconstitutional. However, to place those statutes in context, it is necessary to examine several Georgia laws concerning mental health.

1) Challenged Statutes

Plaintiffs challenge the following statutes concerning treatment of mental illness within a state facility.

(a) It shall be the policy of this state to recognize the personal physical integrity of all patients. (b) It shall be the policy of this state to protect, within reason, the right of every individual to refuse medication except in cases where a physician determines that refusal would be unsafe to the patient or others. If the patient continues to refuse medication after such initial emergency treatment, a concurring opinion from a second physician must be obtained before medication can be continued without the patient's consent. Further, in connection with any hearing under this chapter, the patient has the right to appear and testify as free from any side effects or adverse effects of the medication as is reasonably possible. Any patient objecting to the treatment being administered to him shall have a right to request a protective order pursuant to Code Section § 37-3-148.

O.C.G.A. § 37-3-163. A similar statute that applies to the institutionalized mentally retarded, as opposed to the mentally ill, is also challenged. See O.C.G.A. § 37-4-123.

2) Related Statutes

Georgia law provides that an "inpatient" in a mental hospital is a person who is mentally ill and presents a "substantial risk of imminent harm to that person or others" or "is so unable to care for that person's own physical health and safety as to create an imminently life endangering crisis" and who is in need of involuntary inpatient treatment. O.C.G.A. § 37-3-1(9.1). Thus, the term "inpatient" appears to apply primarily to involuntary patients. A determination of mentally ill status requiring involuntary inpatient treatment is made based upon hearings at which the patient has the right to representation and other procedural protections. See O.C.G.A. §§ 37-3-62, -81, & -83. A voluntary patient is a person who exhibits mental illness and applies to a facility for observation and diagnosis. Such a person may be detained and given care and treatment in the facility until the person "has recovered from his mental illness" or "has sufficiently improved" so that hospitalization is no longer necessary. O.C.G.A. §§ 37-3-20 & —21.

A patient in a facility has the right to "receive care and treatment that is suited to his needs and is the least restrictive appropriate care and treatment." O.C.G.A. § 37-3-162(a); Ga. Rules & Regs. § 290-4-6.02(1)(a). A patient also has the "right to participate in his care and treatment ... to the maximum extent possible," and, unless disclosure is determined and noted to be detrimental to the patient's physical or mental health, he "shall have the right to be fully informed concerning his medication, including its side effects and available treatment alternatives." O.C.G.A. § 37-3-162(b); Ga. Rules & Regs. § 290-4-6(d)(2)(a). "Medication, seclusion, and physical restraints are to be used solely for the purposes of providing effective treatment and protecting the safety of the patient and other persons." O.C.G.A. § 37-3-165(a); Ga. Rules & Regs. § 290-4-6-(d)(1).

To challenge treatment decisions once they have been implemented,

[a] patient or his representative may file a petition in the appropriate court alleging that the patient is being unjustly denied a right or privilege granted by (Chapter 3 (on examination and treatment for mental illness)) or that a procedure authorized by this chapter is being abused. Upon the filing of such a petition, the court shall have the authority to conduct a judicial inquiry and to issue appropriate orders to correct any abuse under this chapter.

O.C.G.A. § 37-3-148(b); Ga. Rules & Regs. ch. 290-4-6-.07. The patient can appeal any order of the proper court pursuant to this provision. Id. The appeal would lie in Superior Court from the Probate Court or to the Court of Appeals and Supreme Court from the Juvenile Court. In addition, each hospital has an appointed Human Rights Committee with the responsibility of investigating and attempting to...