In re Qawi

• Decision Date: 05 January 2004
• Docket Number: No. S100099.,S100099.
• Citation: 81 P.3d 224,32 Cal.4th 1,7 Cal.Rptr.3d 780
• Court: California Supreme Court
• Parties: In re Kanuri Surgury QAWI, on Habeas Corpus.

7 Cal.Rptr.3d 780

81 P.3d 224

32 Cal.4th 1

In re Kanuri Surgury QAWI, on Habeas Corpus.

No. S100099.

Supreme Court of California

January 5, 2004.

Renée E. Torres, under appointment by the Supreme Court, San Francisco, for Petitioner Kanuri Surgury Qawi.

Bill Lockyer, Attorney General, Pamela Smith-Steward, Chief Assistant Attorney General, Charlton G. Holland III, Assistant Attorney General, Stephanie Wald, James M. Humes and Angela Botelho, Deputy Attorneys General, for Respondent the People.

MORENO, J.

The Mentally Disordered Offender Act (MDO Act), enacted in 1985, requires that offenders who have been convicted of violent crimes related to their mental disorders, and who continue to pose a danger to society, receive mental health treatment during and after the termination of their parole until their mental disorder can be kept in remission. (Pen.Code, § 2960 et seq.) Although the nature of an offender's past criminal conduct is one of the criteria for treatment as a mentally disordered offender (MDO), the MDO Act itself is not punitive or penal in nature. (People v. Superior Court (Myers) (1996) 50 Cal.App.4th 826, 836-840, 58 Cal.Rptr.2d 32 (Myers).) Rather, the purpose of the scheme is to provide MDO's with treatment while at the same time protecting the general public from the danger to society posed by an offender with a mental disorder. (Pen.Code, § 2960.)

In keeping with the scheme's nonpunitive purpose, Penal Code section 2972, subdivision (g), provides that MDO's who have been civilly committed after their parole period has expired are granted the same rights that are afforded involuntary mental patients under article 7 of chapter 2 of California's general civil commitment scheme — the Lanterman-Petris-Short Act (LPS Act; Welf. and Inst.Code, § 5000 et seq.).¹ Therefore, rather than grant a specific set of rights to former offenders committed under the MDO Act, the Legislature instead chose to reference the rights granted to involuntary patients from the general population who have been civilly committed under the LPS Act.

In this case, we must decide whether respondent Kanuri Surgury Qawi, petitioner below, an MDO, has the right under subdivision (g) of Penal Code section 2972 to refuse antipsychotic medication prescribed for his mental disorder in the absence of a judicial determination of his incapacity to make such a decision. Petitioner, Dr. Jeffrey Zwerin, Medical Director of Napa State Hospital (hereafter the Director), argues that an MDO has no such right. Qawi argues that he does have that right, subject to limitation only in an emergency situation or in the event he is adjudicated incompetent to refuse medical treatment.

We conclude that neither position is entirely correct. We hold that in order to give MDO's the same rights as LPS patients, an MDO can be compelled to take antipsychotic medication in a nonemergency situation only if a court, at the time the MDO is committed or recommitted, or in a separate proceeding, makes one of two findings: (1) that the MDO is incompetent or incapable of making decisions about his medical treatment; or (2) that the MDO is dangerous within the meaning of Welfare and Institutions Code section 5300. As explained below, someone committed or recommitted as an MDO may not necessarily fit in either of these categories; such MDO's would have the right to refuse medication in nonemergency circumstances. The rights of MDO's to refuse medication can be further limited by State Department of Mental Health regulations necessary to provide security for inpatient facilities.

As will be further explained, this interpretation will give MDO's the same right to refuse medication as mentally ill state prisoners, pursuant to Penal Code section 2600. The adoption of the Director's position, on the other hand, would give rise to the incongruity that mentally ill former prisoners committed under the MDO Act would not have the same limited right to refuse medication to which mentally ill current prisoners are statutorily entitled.

I. FACTS AND STATEMENT OF THE CASE

In August of 1991, Qawi was convicted of felony assault, misdemeanor assault and two counts of misdemeanor battery. He received a four-year sentence. The probation report prepared in connection with this offense indicated that he had attacked a couple in an unprovoked manner, and had made the delusional statement during the attack that it was a blonde woman who caused the Vietnam War.

Qawi was paroled in July of 1993, but his parole was revoked repeatedly. In May of 1994, he was arrested for violating parole after he stalked a sales clerk at a J.C. Penney store. He maintained that the woman, who did not know him, was his wife.

During the incarceration for his second parole violation, Qawi was evaluated, pursuant to Penal Code section 2962 under the MDO Act, for involuntary treatment as a special condition of parole. The evaluators concluded that Qawi met all of the statutory criteria for mental health treatment as a condition of his parole under the MDO Act. During his hospitalization at California Medical Facility at Vacaville, Qawi had been diagnosed with paranoid schizophrenia and paranoid personality disorder. The evaluators noted that Qawi had received 90 days of treatment for his mental disorder and concurred that his mental disorder was not in remission and could not be kept in remission without treatment. The evaluators concluded that he had caused serious bodily injury in committing the felony assault of which he was initially convicted, and his delusional thought process was either the cause of, or an aggravating factor in, both the initial offense for which he was incarcerated and his subsequent parole violations. The evaluators also agreed that, by reason of his severe mental disorder, Qawi represented a substantial danger of risk of physical harm to others. In reaching this conclusion, the evaluators noted his history of assaultive and threatening behavior during both the incarceration for his initial offense and subsequent detention for his parole violations. One evaluator noted that, without medication, respondent "tend[ed] to cycle in and out of decompensated states in which he [was] hostile, paranoid and frequently assaultive." The Board of Prison Terms subsequently found that Qawi met the statutory definition of an MDO and ordered that he be treated as an inpatient by the Department of Mental Health as a special condition of parole.

Qawi's parole status expired in 1997. On January 13, 1997, the superior court found that Qawi continued to meet the statutory criteria for involuntary treatment as an MDO after his parole had expired, and ordered that he be civilly committed for one year.

Qawi's civil commitment and involuntary treatment have been extended annually since 1997. (Pen.Code, § 2972, subd. (e).) Since his initial placement and treatment as an MDO in 1995, none of the petitions or supporting evaluations identify any specific incidents of violence, threats of violence, or property damage that have occurred. However, in several examinations, evaluators have described Qawi as "clearly delusional and grandiose" and have noted that he "expresse[s] some persecutory beliefs regarding his continued incarceration," including that "the State of California had no intention of ever letting him out of the hospital."

Since 1999, the evaluations in support of respondent's continued commitment as an MDO expressly identify respondent's lack of voluntary participation in his treatment plan as the basis for his continued commitment. Qawi has been prescribed antipsychotic medications to treat his paranoid schizophrenia and personality disorder since his initial commitment. Psychiatric evaluations supporting the extension of his MDO status indicate that, despite the fact that he has received antipsychotic medication, he has consistently denied that he is mentally ill, has denied culpability for his initial offense or parole violations, and has remained uninterested and uncooperative in psychotherapy or other forms of psychosocial treatment. Qawi consistently maintains that he suffers no mental illness and requires no medication or other forms of treatment. Evaluators suggest that if "Qawi [were] to be released into the community, it is very likely that he would discontinue medication, decompensate to a more disorganized state, and represent a substantial danger to others."

Although Qawi has consistently voiced his opposition to this treatment, he has not physically resisted the administration of this medication. Until 1998, he was treated with various phenothiazines — the older generation of antipsychotic medications.² In 1996, after Qawi "complained bitterly about the side effects," treatment with antipsychotic medications was discontinued for a two-month "medication holiday." During this time, mild stiffness caused by the medication subsided. However, Qawi's treating psychiatrist noted that the discontinuation of his medication resulted in a "mild but perceptible deterioration in [his] self-care and attendance," and that he had started to refuse psychological testing and behave inappropriately. Qawi was subsequently medicated with a different antipsychotic medication that produced mild muscle side effects. Psychiatric reports state that when medicated, Qawi exhibited a flattened affect and symptoms of anhedonia — the medical term for inability to experience joy. He has also developed arterial hypertension.

Since 1998, Qawi has been treated with Olanzapine and for a period of time he was also injected with the tranquilizer Droperidol every six hours intramuscularly for "agitation." The Director notes that Olanzapine, "a new generation medication," has "fewer serious side effects and a fine record of efficacy." He states that "it has ... been shown much less likely to cause tardive dyskinesia, a severely troubling and often permanent movement disorder associated with the administration...