Mercer v. Thomas B. Finan Ctr.

• Decision Date: 17 December 2021
• Docket Number: No. 9, Sept. Term, 2021,9, Sept. Term, 2021
• Citation: 476 Md. 652,265 A.3d 1044
• Parties: Jason MERCER v. THOMAS B. FINAN CENTER
• Court: Court of Special Appeals of Maryland

476 Md. 652

265 A.3d 1044

Jason MERCER

v.THOMAS B. FINAN CENTER

No. 9, Sept. Term, 2021

Court of Appeals of Maryland.

December 17, 2021

Argued by Miriam Sincell (Cornelia Bright Gordon, Maryland Legal Aid, Cumberland, MD), on brief, for Petitioner

Argued by Musa Eubanks, Asst. Atty. Gen. (Morgan Clipp, Asst. Atty. Gen. and Brian E. Frosh, Atty. Gen. of Maryland, Baltimore MD), on brief, for Respondent

Argued before Getty, C.J., McDonald, Watts, Hotten, Booth, Biran, Glenn T. Harrell, Jr. (Senior Judge, Specially Assigned), JJ.

Watts, J.

Generally, we are able to decide what medication we want to take and what medication we do not want to take even if the medication is prescribed by a physician. A person who is confined at a mental health facility does not always have this choice. Md. Code. Ann., Health-Gen. (1982, 2019 Repl. Vol.) ("HG") § 10-708 sets forth procedures by which a mental health facility may forcibly administer psychiatric medication to an individual confined at a facility who refuses medication. When an individual who is confined at a mental health facility refuses medication, medication may be forcibly administered under two circumstances. See HG § 10-708(b). First, in an emergency, an individual may be forcibly medicated on the order of a physician if the individual "presents a danger to the life or safety of the individual or others[.]" HG § 10-708(b)(1). Second, in a nonemergency, an individual may be forcibly medicated where "the individual is hospitalized involuntarily or committed for treatment by order of a court and the medication is approved by a [clinical review] panel under the provisions of this section." HG § 10-708(b)(2).

In a nonemergency situation, a clinical review panel, which is composed of health professionals not directly responsible for the individual's treatment, must decide whether to approve the forcible administration of medication. See HG § 10-708(c)(2) and (g). If the panel approves forced medication, the panel's written decision must advise that the individual has "the right to request a hearing" and "[t]he right to request representation or assistance of a lawyer or other advocate of the individual's choice[.]" HG § 10-708(i)(4)(i) and (ii). Under the statute, the individual must request a hearing within forty-eight hours of receiving the panel's decision. See HG § 10-708(l)(1). But, the statute does not impose a deadline on an individual's request for representation.

In July 2019, Jason Mercer, Petitioner, a patient at a psychiatric institution, refused to take prescribed psychotropic medication. After a panel was convened and approved forced medication, Mercer requested a hearing within the forty-eight-hour deadline but indicated on an appeal request form that he declined legal representation. The form presented Mercer four choices with respect to representation at the administrative hearing: (1) legal representation to be provided at no cost by the State's designated Legal Assistance Provider; (2) private legal representation at his own expense; (3) no legal representation and having a layperson serve as an advocate; or (4) no legal representation and appearing on his own behalf. Mercer checked the line indicating that he declined legal representation and would appear at the hearing on his own behalf. Six days later, Mercer received a notice of the hearing date from the Maryland Office of Administrative Hearings ("OAH") advising that he had the right to request representation or the assistance of a lawyer or other advocate of his choice.

On the day of the hearing, Mercer asked for counsel. The Administrative Law Judge ("the ALJ") treated the request for counsel as a request for a postponement. The ALJ determined that Mercer had been given the opportunity for legal representation at no cost to himself and had indicated on the appeal request form and verbally to a rights advisor¹ that he did not want counsel. After making this determination, the ALJ announced that there was not good cause to postpone the hearing. The hearing took place with Mercer unrepresented.

Against this backdrop, we must determine whether the ALJ was required to conduct an on-the-record waiver colloquy to determine whether Mercer waived the right to request counsel under HG § 10-708. Implicit in this question is the issue of whether a right to counsel exists under HG § 10-708 and, if so, whether the act of checking a line declining representation on an appeal request form constitutes a waiver of the right to counsel. We hold that, under the plain language of HG § 10-708, an individual possesses a right to counsel upon request. Stated differently, if an individual makes a request, the individual has the right to counsel. The plain language of the statute imposes no time limit or deadline by which an individual must make a request for counsel. Therefore, unless the right is waived, an individual may request counsel up to the time of and including at the administrative hearing. To safeguard the right to counsel, an on-the-record waiver colloquy of the kind required in a criminal case is not necessary, but there must be verification that an individual has knowingly and voluntarily waived the right to counsel and elected to proceed without legal representation. Applying these principles, we conclude that in this case the ALJ erred in declining Mercer's request to be represented by counsel at the administrative hearing.

BACKGROUND

The Thomas B. Finan Center ("the Center"), Respondent, is an inpatient psychiatric facility run by the Maryland Department of Health ("the Department") and located in Cumberland, Maryland. In January 2018, Mercer was involuntarily admitted to the Center. Several years earlier, a circuit court had found Mercer not criminally responsible under Md. Code Ann., Crim. Proc. (2001, 2008 Repl. Vol.) § 3-112 for second-degree assault and unauthorized use of a motor vehicle. Mercer is diagnosed with a schizoaffective disorder of bipolar type

.²

Following his admission to the Center, Mercer took prescribed psychotropic medications after cajoling and negotiation, but improved such that he was able to be transferred to a less-restrictive unit. On July 18, 2019, though, Mercer began refusing the proper dose of the medication. Mercer also declined food and water on the grounds that the food was processed and that he was uncertain about the contents of the water. Mercer's psychiatrist arranged for the Center to provide yogurt or produce alongside regular meals, which Mercer ate. Nevertheless, Mercer, who originally weighed 208 pounds before refusing food and water, lost approximately 24 pounds, and weighed 184 pounds at the time of the hearing. Mercer also experienced symptoms of dehydration. In addition, Mercer refused to attend group therapy sessions, and instead held "his own therapeutic group" meetings with other patients. According to Center staff, Mercer urged other patients to reject treatment as well. Once, as a result of Mercer's "counseling" of another patient to discontinue electroconvulsive therapy

, Center staff had to spend additional time persuading the patient to continue with the treatment.

On another occasion, Mercer allegedly caused other patients to become agitated to the point that staff had to clear a Center day room. Later the same day, during a psychiatry session, Mercer indicated he needed to see a doctor due to a rash on his arm. When the rash could not be located, Mercer began thrashing his arms, legs, and head, and was eventually offered medication.³ On August 1, 2019, the Center notified Mercer and his rights advisor, Lisa Olinger, that a panel would meet on August 5, 2019 to decide whether the psychiatric medication prescribed by Mercer's treating physician, Dr. Jessica Merkel-Keller, would be given to him despite his refusal.

The Panel's Written Decision

On August 5, 2019, a panel consisting of Herb Chissell, M.D., Elliott Gauer, DO, and Jim Crable, RPh, convened. Dr. Merkel-Keller and Olinger also attended. Mercer spoke at the panel meeting but left early. At the conclusion of the meeting, the panel recommended forced medication. In a written decision issued the same day, the panel indicated that the statutory criteria necessary for the involuntary administration of medication set forth in HG § 10-708(g) were satisfied. The panel's written decision approved forced administration of various medications, including fluphenazine (generic Prolixin

), an antipsychotic, for ninety days. The decision stated:

IF YOU DISAGREE WITH THIS DECISION, YOU MAY REQUEST A HEARING BEFORE AN ADMINISTRATIVE

LAW JUDGE BY INFORMING THE RIGHTS ADVISOR OR THE CHIEF EXECUTIVE OFFICER (CEO) OR DESIGNEE OF THE FACILITY THAT YOU WANT TO FILE AN APPEAL.

(Capitalization in original) (bolding omitted). The decision also provided:

If you want to appeal the panel's decision, you must make your request for a hearing within 48 hours of being given this notice. If you appeal, a hearing will be held within 7 days of receipt of this notice, unless the administrative law judge grants a postponement.... If you appeal, you have the right to request representation or assistance at the hearing from the agency indicated below or from a lawyer or other advocate of your choice. The facility rights advisor will assist you.

The panel's written decision supplied the name, address, and telephone number of the "Legal Assistance Provider and the Lawyer Referral Service[,]" which was listed as Maryland Legal Aid, and explained: "or Maryland Legal Aid can be reached through the assistance of Lisa Olinger, Rights Advisor [phone number]."

The Appeal Request Form

On the same day, after the panel meeting, Olinger gave Mercer a copy of the panel's written decision and a form entitled "Resident Grievance System Request to Appeal Decision of Clinical Review Panel" ("the Appeal Request Form"). The Appeal Request Form advised that the individual "has 48 hours following receipt of this decision to file an appeal" and that any hearing...