Mercer v. Thomas B. Finan Ctr.
| Decision Date | 28 January 2021 |
| Docket Number | No. 1398, Sept. Term, 2019,1398, Sept. Term, 2019 |
| Citation | 249 Md.App. 144,245 A.3d 85 |
| Parties | Jason MERCER v. THOMAS B. FINAN CENTER |
| Court | Court of Special Appeals of Maryland |
Argued by: Miriam R. Sincell (Cornelia Bright Gordon and Maryland Legal Aid on the brief) Cumberland, Maryland, for Appellant.
Argued by: Margaret S. Lankford (Brian E. Frosh, Attorney General on the brief) Baltimore, Maryland, for Appellee.
Panel: Berger, Arthur, Robert A. Zarnoch (Senior Judge, Specially Assigned), JJ.
Arthur, J. Appellant Jason Mercer is a patient involuntarily confined to the Thomas B. Finan Center. A clinical review panel decided to administer anti-psychotic medications to him against his will. An administrative law judge (ALJ) approved the decision, and the Circuit Court for Allegany County affirmed the ALJ's order. In this appeal, Mercer claims that he had a statutory right to counsel at the administrative hearing and that the ALJ, in denying his request for counsel, deprived him of his procedural due process rights.
We conclude that Mercer had the statutory right to request the assistance of counsel at the hearing, but that he had declined the assistance of counsel until the hearing began. In these circumstances, we shall hold that the ALJ did not err or abuse her discretion in treating Mercer's belated request for the assistance of counsel as a request for a postponement, for which he lacked good cause. We shall also hold that the ALJ did not deprive Mercer of procedural due process in not conducting an on-the-record colloquy to confirm that he had knowingly and voluntarily waived the right to counsel. Accordingly, we shall affirm the judgment.
Mercer is a patient at the Thomas B. Finan Center ("the Finan Center"), a psychiatric facility of the Maryland Department of Health. Mercer had been diagnosed with schizoaffective disorder
, bipolar type. He was involuntarily placed at the Finan Center after being found not criminally responsible for second-degree assault and unauthorized use of a motor vehicle.
In July 2019, Mercer began refusing to take his prescribed psychotropic medications. On August 5, 2019, a clinical review panel was convened to determine whether to approve the administration of medication against Mercer's will.1
The panel found that Mercer had been suffering from increased paranoia because of his refusal to take the medications. Mercer, since refusing medication, had begun to suffer from delusions that led him to refuse food and water. At the time the panel met, Mercer had lost approximately 25 pounds and was continuously dehydrated. He had become distrustful of his own physician and began refusing to engage in therapy sessions. He interfered with other patients’ treatment plans and triggered distressed behavior in the other patients by holding his own group therapy sessions and encouraging the other patients to refuse treatment.
The panel determined that, without medication, Mercer was at a greater risk of causing harm to himself or others. Based on these concerns and the recommendations of his treating physician, the panel approved the administration of the recommended medication.
On August 5, 2019, the panel gave Mercer written notice of its decision. That same day, Mercer's lay advisor, Lisa Olinger, reviewed both the panel's written decision and the form that the Finan Center uses to inform patients of the right to request an appeal of the panel's decision (the "appeals form") with Mercer.
The appeals form informs patients of their procedural rights under Md. Code , § 10-708 of the Health-General Article ("HG"), when a clinical review panel has approved the administration of medication. The appeals form informs patients, first, of the right to appeal the panel's decision; second, of the requirement that the appeal be filed within 48 hours of receiving the panel's written notice; and, third, of the right to request legal representation. The appeals form also describes the types of legal representation available to patients, including: (1) the right to legal representation provided by the State at no cost to the patient; (2) the right to obtain and pay for the patient's own legal representation; (3) the right to request representation by a non-legal advocate; and (4) the right to decline legal representation and to appear on one's own behalf.
Ms. Olinger discussed the categories of representation with Mercer and explained the process for requesting an appeal. Mercer told Ms. Olinger that he did not want to appeal.
Two days later, on August 7, 2019, Mercer met with Ms. Olinger again. This time he stated that he did want to appeal. Ms. Olinger again went over the appeals form with Mercer. Mercer filled out the form to request an appeal of the panel's decision, but checked the box declining legal representation and told Ms. Olinger that he did not want to be represented by counsel. Ms. Olinger signed and processed the appeals form.2
Mercer's administrative hearing occurred on August 16, 2019, before an ALJ with the Office of Administrative Hearings. At the start of the administrative hearing, Mercer told the ALJ that he now "desire[d] an attorney." The ALJ, relying on the appeals form, informed Mercer that he had been "offered the opportunity to make a choice" to request legal counsel, but had marked the box declining legal counsel. Mercer stated that he recognized his signature on the appeals form, but told the ALJ that he did not remember signing the form. He also claimed that if he had signed the form, he had not understood it because he did not have "legal counsel available when [he] was filling out" the form.
To confirm whether Mercer had signed the appeals form, the ALJ asked whether Ms. Olinger, who was not present at the hearing, could appear. When Ms. Olinger arrived, the ALJ asked her to confirm that Mercer had signed the appeals form. Ms. Olinger confirmed that Mercer had signed the form. She stated that she had explained to Mercer that if he marked the "no legal representation" box on the form, no attorney would be present at the hearing. Mercer again expressed his desire for an attorney, stating "I really would like to have ... a lawyer."
The ALJ, based on the appeals form and Ms. Olinger's description of the August 7, 2019, meeting, determined that Mercer "clearly indicated to Ms. Olinger that [he] declined legal representation." The Finan Center agreed, stating that Mercer had declined legal representation. It argued that postponing the administrative hearing to allow Mercer to obtain representation would place both Mercer and the other patients at a continued risk. Mercer again requested a lawyer, stating
The ALJ determined that while "certain procedural safeguards" had been "put into place for these hearings," these safeguards did not require that legal counsel be present while Mercer was reviewing the appeals form. The ALJ also determined that Mercer had declined legal representation after he had been informed of his right to request representation. The ALJ found that Mercer "had a whole lot of time between the time [he] filled out [the appeals form] until now to change [his] mind and ask for counsel." Therefore, the ALJ concluded there was no good cause to postpone the administrative hearing until Mercer could obtain counsel.
The ALJ proceeded to the hearing on the merits and approved the clinical review panel's decision, finding that Mercer did present a danger to himself and others.
On August 26, 2019, Mercer petitioned for judicial review of the ALJ's decision in the Circuit Court for Allegany County. The circuit court held the hearing on September 4, 2019. On September 5, 2019, the court issued its decision affirming the ALJ's decision. On October 1, 2019, Mercer filed this appeal.
Mercer presents two questions for appellate review, which we have rephrased for clarity:
For the reasons stated below, we conclude that because HG § 10-708 provides patients with a right to request representation that they must affirmatively invoke, and because Mercer affirmatively declined the assistance of counsel until just before the hearing began, the ALJ did not err or abuse her discretion in deciding not to postpone the hearing until counsel could be obtained. We also conclude that due process did not require the ALJ to conduct an on-the-record colloquy to confirm that Mercer had knowingly and voluntarily waived the right to counsel.
We review the decision of the ALJ, not the circuit court. Allmond v. Department of Health & Mental Hygiene , 448 Md. 592, 608, 141 A.3d 57 (2016) ; Beeman v. Department of Health & Mental Hygiene , 107 Md. App. 122, 135, 666 A.2d 1314 (1995). Our review of the ALJ's decision is "quite narrow." Cecil County Dep't of Soc. Servs. v. Russell , 159 Md. App. 594, 604, 861 A.2d 92 (2004). We are limited to determining if there is substantial evidence in the record as a whole to support the findings and conclusions and whether the decision is based on an erroneous conclusion of law. See , e.g ., United Parcel Serv., Inc. v. People's Counsel for Baltimore Cnty ., 336 Md. 569, 577, 650 A.2d 226 (1994).
The findings and conclusions are supported by substantial evidence if a reasoning mind reasonably could have reached the factual...
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Mercer v. Thomas B. Finan Ctr.
...AppealsOn January 28, 2021, the Court of Special Appeals affirmed the circuit court's judgment. See Mercer v. Thomas B. Finan Ctr., 249 Md. App. 144, 151, 245 A.3d 85, 88 (2021). The Court of Special Appeals concluded that HG § 10-708(i)(4)(ii) confers upon patients a right to request legal......