In re Guardianship L.H.

• Decision Date: 24 January 2014
• Docket Number: No. 11–P–1510.,11–P–1510.
• Citation: 3 N.E.3d 92,84 Mass.App.Ct. 711
• Parties: GUARDIANSHIP OF L.H.
• Court: Appeals Court of Massachusetts

84 Mass.App.Ct. 711

3 N.E.3d 92

GUARDIANSHIP OF L.H.

No. 11–P–1510.

Appeals Court of Massachusetts, Middlesex.

Argued Sept. 18, 2012.

Decided Jan. 24, 2014.

Laura A. Sanford, Bedford, for the ward.

Miriam H. Ruttenberg, Phillip Kassel, Richard M. Glassman, Hillary J. Dunn, Thomas P. Murphy, & Robert D. Fleischner, for Mental Health Legal Advisors Committee & others, amici curiae, submitted a brief.

Present: BERRY, BROWN, & AGNES, JJ.

BERRY, J.

This case involves two substituted judgment proceedings on petitions filed, following the precedent of Rogers v. Commissioner of the Dept. of Mental Health, 390 Mass. 489, 458 N.E.2d 308 (1983), and cases decided in its wake, in respect to the administration of antipsychotic medications to L.H. L.H. appeals from a decree and findings of the Probate and Family Court that she was not competent to make medical decisions and would benefit from a proposed treatment plan to use the antipsychotic drug Risperdal, and that she would consent to use of that drug were she competent. L.H. also appeals from the judge's subsequent allowance of a motion to reinstate and to modify the treatment plan to allow for the administration by injection of Risperdal. The two appeals were consolidated here.

L.H. argues on appeal that there was insufficient evidence that the administration of antipsychotic medication was appropriate. In addition, L.H. argues that her trial counsel rendered ineffective assistance. We affirm.

For the reasons addressed in part 1, we conclude that the evidence in these substituted judgment proceedings and the probate judge's findings established by a preponderance that L.H. was in need of treatment with antipsychotic drugs. See G.L. c. 190B, § 5–306A. See generally Guardianship of Erma, 459 Mass. 801, 802 n. 2, 947 N.E.2d 1073 (2011) (discussing substituted judgment in context of involuntary administration of antipsychotic drugs). For the reasons addressed in part 2, we decline to reach the ineffective assistance of counsel claims in these direct appeals. First, such claims are not fully developed on this trial record and were not further developed in a motion for new trial. Second, based on the extant record that underlies the direct appeals, nothing has been made to appear that the standard of prejudice would be met in this particular case. A showing of prejudice is the governing standard for ineffective assistance claims in civil cases involving fundamental liberty interests in the administration of antipsychotic medication, such as presented in this case. See generally Poe v. Sex Offender Registry Bd., 456 Mass. 801, 813, 926 N.E.2d 187 (2010), quoting from Commonwealth v. Mahar, 442 Mass. 11, 15, 809 N.E.2d 989 (2004) (prejudice in ineffectiveness claims is “a ‘reasonable probability’ that ‘but for counsel's unprofessional errors, the result of the proceeding would have been different’ ”).

1. Procedural background and trial evidence. At the time these proceedings commenced, L.H., a fifty-seven year old woman, was living at the Lowell Health Care Center (LHCC), where she had resided since being admitted in October, 2009, having previously been a resident in a nursing home in New York. In addition to mental health issues, L.H. suffers from multiple sclerosis (MS), among other physical ailments, and requires a wheelchair. Her medical history included prior treatment with antipsychotic medication. In past times, L.H. had been homeless.

On November 30, 2009, LHCC staff members Mark O'Flaherty and John Handren (collectively, petitioners) filed a petition in the Probate and Family Court seeking appointment of a guardian for L.H. pursuant to G.L. c. 190B, § 5–303. The petition later was amended to include a proposed antipsychotic treatment plan. Because L.H. challenges the commencement of the proceedings in the first instance, we note that Dr. Anthony Joseph, a psychiatrist, completed and signed the statutorily required medical certificates and supporting documentation, all of which were filed with the court as the proceedings began. These documents, including the medical affidavit and treatment plan, detail L.H.'s physical and mental condition at the time the proceedings were commenced and, we conclude, justified the petition undertaken.¹

A hearing was held on August 30, 2010. The witnesses included Dr. Joseph of LHCC; Dr. David Rosmarin, an independent forensic psychiatrist retained by L.H.'s court-appointed counsel; L.H.; and her court-appointed temporary guardian.

Dr. Joseph provided a psychiatric diagnosis of borderline personality disorder, mood disorder, anxiety, and excessive compulsiveness, among other mental ailments. He noted that behavioral modification treatment had been ineffective. This psychiatrist testified that treatment with an antipsychotic medicine was proposed to decrease L.H.'s agitation and paranoia so that ensuing behavioral treatment could become more effective, with the goal of returning L.H. to a supportive living environment in New York. While acknowledging that the proposed antipsychotic medicine, Risperdal, had side effects, the psychiatrist stated his medical opinion that it would be the preferred drug for L.H., and that the medication's side effects relative to its over-all effectiveness were within tolerable ranges. Specifically, the psychiatrist opined on this point as follows:

“The thing with Risperdal, the reason why I choose it is I've observed that in some people it can work very well at a very low dose and you don't get any or many side effects, which I think is the main attraction here.... So my first hope would be to try and treat the agitation and the paranoia with something that essentially has no side effects or actually has no side effects. So I see that potential in Risperdal. That's the logic.”

Regarding L.H.'s prognosis if left untreated, Dr. Joseph predicted that she would “continue the way she is,” and added that he “would be very concerned about what kind of facility she would end up in in New York, how long they would keep her.”

The second psychiatric expert witness, Dr. Rosmarin, who had been retained by counsel for L.H., also stated medical opinions that tended to support the position that L.H. would benefit from the proposed treatment plan. Dr. Rosmarin had examined L.H. at length, and had spoken with LHCC staff in detail. This psychiatrist diagnosed L.H. as having a personality disorder with obsessive compulsive symptoms and suggested she could benefit from treatment with antipsychotic medicine, although at a lower dose than was proposed: “This lady needs very careful management but with a very careful behavioral plan in concert possibly with two kinds of medications. One would be a very low dose of antipsychotic. I don't have an objection to that.”

L.H. testified in opposition to the treatment plan and to the use of antipsychotic medications. L.H. acknowledged that she had been homeless, suffers from MS, requires the use of a wheelchair, and needs physical assistance in her living situation. However, she did not believe guardianship was warranted, and she protested the use of antipsychotic drugs. She stated that when she previously had been treated with the proposed antipsychotic Risperdal, she had experienced severe side effects and “would rather be dead than go on [Risperdal] again.”

The guardian testified he had met with L.H., consulted with LHCC staff, and spoken with L.H.'s sister on three or four occasions. Based on those discussions, the guardian stated, “I think she needs some supervision and she needs some medication.”

At the conclusion of the hearing, the judge found “that the testimony of the two physicians that have been proffered to the court today are really not diametrically opposed. They both appear to me to agree that treatment is needed, continuation of the guardianship is warranted and that the treatment plan as proposed, actually by both physicians, in my opinion, involves both medical treatment, a psychotropic drug treatment, together with a behavioral treatment.”

In his findings of fact, the judge acknowledged L.H.'s stated preference against the proposed antipsychotic medication, but found, listing the Rogers decisional factors,² including but not limited to possible side effects, “that if [L.H.] could rationally evaluate the side effect[s] described ..., she would choose the Treatment Plan subject to the explanation that the use of the drugs would be properly managed and that ... efforts [would be made to] continue to monitor the dosage within the lowest optimum range.” ³

Accordingly, the judge authorized the proposed treatment plan (with modifications proposed by Dr. Rosmarin and accepted by Dr. Joseph) and appointed a permanent guardian and Rogers monitor for L.H. The judge scheduled the treatment plan for review on December 6, 2010, the date the order was set to expire. The plan expired on schedule on December 6, 2010.

On September 1, 2011, staff of LHCC, as the petitioners, filed a motion in the Probate and Family Court to reinstate the Rogers order and to modify it to allow an injectable form of the antipsychotic medication to be administered because L.H. was refusing to take Risperdal orally. The testimony at this hearing reflected L.H.'s persistent mental disabilities. Dr. Joseph provided a diagnosis similar to his medical opinion at the August, 2010, hearing, i.e., that L.H. suffered from “atypical psychosis” with symptoms manifested as “paranoia, agitation, [and] dysphoria.... Poor insight and judgment around the treatment of her mental illness.”

Dr. Joseph also supported the modification of the treatment plan modification to include injectable medication, stating, “Most likely she would become much less paranoid, much less agitated and would have a much improved quality of life in terms of her sense of well being and satisfaction.” The prognosis without antipsychotic medication was as follows: “Without treatment, she would continue to be agitated, dysphoric with...