Riese v. St. Mary's Hosp. and Medical Center

• Decision Date: 16 December 1987
• Docket Number: No. A034048,A034048
• Citation: 243 Cal.Rptr. 241
• Court: California Court of Appeals Court of Appeals
• Parties: Eleanor RIESE, et al., Plaintiffs and Appellants, v. ST. MARY'S HOSPITAL AND MEDICAL CENTER, Defendant and Respondent.

Page 241

243 Cal.Rptr. 241

Eleanor RIESE, et al., Plaintiffs and Appellants, v. ST. MARY'S HOSPITAL AND MEDICAL CENTER, Defendant and Respondent.

No. A034048.

Court of Appeal, First District, Division 2, California.

Dec. 16, 1987.

As Modified Dec. 21, 1987.

As Modified on Denial of Rehearing Jan. 15, 1988.

Review Granted March 3, 1988.

Colette I. Hughes, Protection and Advocacy, Inc., Oakland, Morton P. Cohen, San Francisco, for plaintiffs and appellants.

Peter W. Davis, James M. Wood, Ezra Hendon, Crosby, Heafey, Roach & May, Oakland, for defendant and respondent.

J. Benedict Centifanti, Law Clerk on the brief, James J. Preis, Mental Health Advocacy Services, Inc., Los Angeles, Michael L. Perlin, Director of the Federal Litigation Clinic of New York Law School, Peter Margulies, Managing Atty., Federal Litigation Clinic, New York City, amicus curiae.

KLINE, Presiding Justice.

This class action presents the question whether psychiatric patients involuntarily committed to mental health facilities under Welfare and Institutions Code sections 5150 and 5250 ¹ may be forced to take antipsychotic drugs against their will in non-emergency ² situations.

Appellant Riese, on behalf of the class of patients institutionalized under sections 5150 and 5250 and given antipsychotic drugs over their objection, brought a petition for writ of mandate seeking a determination that the patients' informed consent was required before such drugs could be administered. Appellants contend that California statutes, common law and constitutional guarantees of privacy and freedom of speech give them the right to refuse antipsychotic drugs.

We hold that appellants have statutory rights to exercise informed consent to the use of antipsychotic drugs in non-emergency situations absent a judicial determination of their incapacity to make treatment decisions, and do not reach the constitutional issues.

STATEMENT OF FACTS

Appellant Riese has a history of chronic schizophrenia, apparently stemming from childhood meningitis. She was first hospitalized in 1968, at age 25. In 1969, an internist prescribed the antipsychotic drug Mellaril; appellant showed immediate improvement, moved into her own apartment and was not hospitalized for approximately 11 years. By 1981, however, appellant had developed bladder problems associated with long-term use of Mellaril. Her medication was changed but she decompensated to the point that she had to be hospitalized for two weeks in 1981. She was rehospitalized in 1982 and placed back on Mellaril on the theory that her bladder was already so damaged that more or less Mellaril would not affect its potential recovery. In 1984, appellant switched doctors and was placed on Moban, which did not help her symptoms. She then stopped seeing the doctor, decompensated and was hospitalized, the hospitalization from which the present litigation arose.

Appellant was admitted to respondent hospital as a voluntary patient on June 12, 1985, for an acute exacerbation of chronic schizophrenia. According to the report of the initial consultation, she had previously been treated with Mellaril but had not been taking the drug for five weeks. According to two psychiatrists who reviewed her records, appellant's failure to continue this medication was not the cause of the increasing agitation and anxiety, hallucinations and paranoid ideation that led to her hospitalization.

Upon admission, appellant signed a voluntary inpatient's consent form for antipsychotic medication, indicating that she had been informed of the nature of the drugs and their possible side effects and understood her right to refuse the drugs. The form specified the drugs Mellaril and Cogentin. On June 16, appellant consented to have her medication changed to Molindane (Moban). On June 17, the medication was changed to Navane, this time without execution of a consent form. On June 18, appellant was switched back to Mellaril, at an increased dosage. Appellant complained that Mellaril made her sleepy but agreed to take 100 milligrams four times a day. The next day she complained of dizziness and dry mouth and insisted that the staff had given her too much medication. When appellant became more agitated and refused medication she was forcibly injected. ³

At this point, on June 19, appellant was made an involuntary patient under Welfare and Institutions Code section 5250, on the ground that she refused medication and became violent, was unable to cooperate with treatment and was actively psychotic. Thereafter, appellant was apparently switched back to Navane and given medication intramuscularly when she refused to ingest it orally. Appellant complained that Navane had adverse physical effects (dermatitis and swelling of the ankles) and at one point agreed to take Mellaril in order to discontinue the Navane.

On June 26, 1985, it was recommended that a conservator be appointed for appellant, who was assertedly unable to provide for her own food, shelter and clothing and delusional about medication and therefore unable or unwilling to accept voluntary treatment. (§ 5352.) A temporary conservator was appointed on July 2 (§ 5352.1); a conservator was appointed subsequently on August 5, 1985. (§ 5350.) The court authorized the temporary conservator to place appellant for psychiatric treatment. (§§ 5353, 5358.)

On July 10, appellant was discharged to a board and care home, but she did not do well and was readmitted to the hospital on July 12. Her medication was changed to Serentil, with orders providing for intramuscular injections if she refused. Appellant continued to suffer from swollen feet, urinary problems, shaking, memory loss and seizures. While appellant attributes these problems to her use of medications, respondent contends that appellant was delusional about the medications.

DISCUSSION

Antipsychotic Medications

Antipsychotic or, as they are sometimes called, psychotropic or neuroleptic drugs are "customarily used for the treatment of symptoms of psychoses and other severe mental and emotional disorders." (Cal.Admin.Code, tit. 9, § 856.) The drugs benefit many patients by minimizing or eliminating psychotic symptoms (Keyhea v. Rushen (1986) 178 Cal.App.3d 526, 531, 223 Cal.Rptr. 746 review den. July 10, 1986; Gelman, Mental Hospital Drugs, Professionalism, and the Constitution (1984) 72 Geo.L.J. 1725, 1741), although not all patients are helped by the drugs and some improve without them (Hollister, Psychiatric Disorders (1980), Principles and Practice of Clinical Pharmacology and Therapeutics (1980), p. 1076; Jennings & Schultz, Psychopharmacologic treatment of schizophrenia: developing a dosing strategy (1986) 21 Hosp.Formul. 332), and there is no means to accurately predict how a patient will react to a particular drug. (Kemna, Current Status of Institutionalized Mental Health Patients' Right to Refuse Psychotropic Drugs (1985) 6 J. Legal Med. 107; Plotkin, Limiting the Thearapeutic Orgy: Mental Patients' Right to Refuse Treatment (1977) 72 Nw.U.L.Rev. 461, 474-475.) The drugs are palliative rather than curative (Baldessarini, Chemotherapy in Psychiatry: Principles and Practice (rev. ed. 1985) 52; Hollister, supra, at p. 1076) and are most effective in the treatment of acute (short-term) rather than chronic (long-term) psychosis. (Baldessarini, supra, at pp. 52-53, 57; 87-88; Baldessarini & Lipinski, Risks vs. Benefits of Antipsychotic Drugs (1973) 289 New Eng.J. of Med., 427, 427-428; Kemna, supra, 6 J.Legal Med. at p. 110.) For acute cases, however, these drugs are the principal and single most effective treatment (Baldessarini & Lipinski, supra, at p. 427; Baldessarini,supra, at p. 87; Hollister, supra, at p. 1076), and "withholding of these medications within a period of weeks to a few months after recovery from an acute breakdown carries a serious risk of relapse." (Baldessarini & Lipinski,supra, at pp. 427-428.) Indeed, use of these drugs has greatly reduced the number of mentally ill requiring hospitalization, and the frequency and length of hospitalizations. (Hollister, supra, at p. 1058; Gelman, supra, at pp. 1725-1726, 1741; Brooks, Law and Antipsychotic Medications (1986) 4 Behavioral Sciences & the Law 247, 248-249.) It is believed that the positive effects of antipsychotic drugs are greatly lessened if the patient does not accept it willingly. (Rennie v. Klein (D.N.J.1978) 462 F.Supp. 1131, 1141.)

Antipsychotic drugs have been described as normative in the sense that they "restore existing imbalance toward the balanced norm ... [and] are generally incapable of creating thoughts, views ideas or opinions de novo, or of permanently inhibiting the process of thought generation." (Appelbaum & Gutheil, "Rotting with their Rights On": Constitutional Theory and Clinical Reality in Drug Refusal by Psychiatric Patients (1979) 7 Am.Acad.Psych.L.Bull. 306, 308.) By the same token, they are by intention mind altering in that they act upon thought processes. (Guardianship of Roe (1981) 383 Mass. 415, 421 N.E.2d 40, 52-53; Rogers v. Okin (D.C.Mass.1979) 478 F.Supp. 1342, 1360 affd. in part, reversed in part (1st Cir.1980) 634 F.2d 650; vacated Mills v. Rogers (1982) 457 U.S. 291, 102 S.Ct. 2442, 73 L.Ed.2d 16 on remand (1st Cir.1984) 738 F.2d 1.) The drugs have been called "powerful enough to immobilize mind and body." ( Guardianship of Roe, supra, 421 N.E.2d at p. 53.) They " 'possess a remarkable potential for undermining individual will and self-direction, thereby producing a psychological state of unusual receptiveness to the directions of custodians.' " ( Keyhea v. Rushen, supra, 178 Cal.App.3d at p. 531, 223 Cal.Rptr. 746, quoting Gelman, supra, at p. 1751.) Abuses of psychotropic medications in understaffed and inadequately funded public mental hospitals have been documented. (See, e.g., Davis v. Hubbard (N.D.Ohio 1980) 506 F.Supp. 915, 926-927.)

In addition to their universally accepted benefits in the treatment of at least acute patients,...