Rogers v. Commissioner of Dept. of Mental Health

Decision Date29 November 1983
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Leah S. Crothers, Sp. Asst. Atty. Gen., for defendants.

Richard Cole, Roxbury (Robert Burdick, Roxbury, with him), for plaintiffs.

Donald N. Bersoff, Geoffrey P. Miller & Paul R. Friedman, Washington, D.C., submitted brief for American Psychological Ass'n, amicus curiae.

Joel I. Klein, Washington, D.C., submitted brief for American Psychiatric Ass'n and another, amici curiae.

Robert H. Weber, Jonathan Brant, Cynthia Carr and Richard Castelnuovo, Boston, submitted brief for Mental Health Legal Advisors Committee, amicus curiae.

Robert M. Levy, New York City, and John Reinstein, Boston, submitted brief for American Orthopsychiatric Ass'n and others, amici curiae.

Joseph H. Rodriguez, Laura M. LeWinn and J. Benedict Centifanti, Trenton, N.J., submitted brief for N.J. Dept. of the Public Advocate, Div. of Mental Health Advocacy, amicus curiae.


ABRAMS, Justice.

We are asked to respond to nine questions certified by the United States Court of Appeals for the First Circuit which focus on the right of involuntarily committed mental patients to refuse treatment, and the standards and procedures which must be followed to treat those patients with antipsychotic medication. 3 The basic conclusions we reach are that a committed mental patient is competent and has the right to make treatment decisions until the patient is adjudicated incompetent by a judge. If a patient is adjudicated incompetent, a judge, using a substituted judgment standard, shall decide whether the patient would have consented to the administration of antipsychotic drugs. Guardianship of Roe, 383 Mass. 415, --- - ---, Mass.Adv.Sh. (1981) 981, 1010-1016, 421 N.E.2d 40. Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 750-755, 370 N.E.2d 417 (1977). No State interest justifies the use of antipsychotic drugs in a non-emergency situation without the patient's consent. Antipsychotic drugs, which are used to prevent violence to third persons, to prevent suicide, or to preserve security, are being used as chemical restraints and must follow the strictures of G.L. c. 123, § 21, and the regulations promulgated pursuant to the statute. A patient may be treated with antipsychotic drugs against his will and without prior court approval to prevent the "immediate, substantial, and irreversible deterioration of a serious mental illness." If a patient is medicated in order to avoid "immediate, substantial, and irreversible deterioration of a serious mental illness," and the doctors expect to continue to treat the patient with antipsychotic medication over the patient's objection, the doctors 4 must seek adjudication of incompetency, and, if the patient is adjudicated incompetent, the court must formulate a substituted judgment treatment plan.

We summarize the facts and procedural background of the case. 5 On April 27, 1975, a class action was commenced in the United States District Court for the District of Massachusetts against the defendant Commissioner of the Department of Mental Health (department) and numerous doctors and administrative staff members of the May and Austin Units of Boston State Hospital (hospital), pursuant to 42 U.S.C. § 1983 (1970). The seven named plaintiffs, all of whom had been committed to the hospital prior to commencement of the action, challenged the defendants' practices of secluding and medicating patients against their will. Alleging that these practices infringed their rights under the United States Constitution and violated acceptable medical standards, the plaintiffs sought injunctive relief for the class and an award of damages for themselves in the Federal District Court.

Three days after the complaint was filed, a Federal District Court judge issued a temporary restraining order, prohibiting the seclusion and antipsychotic medication of hospital patients in nonemergency situations without the consent of the patient or a guardian. After trial, the judge denied damages because the defendants' medication and seclusion practices were in accordance with acceptable medical standards. Rogers v. Okin, 478 F.Supp. 1342, 1380-1389 (D.Mass.1979) (hereinafter cited as Rogers I ).

However, the judge determined that mental patients not adjudicated incompetent have a constitutional right to refuse treatment in nonemergency situations, and that the same right extends to incompetent patients, for whom the treatment decision should be made by a guardian using a substituted judgment standard. Id. at 1361-1368. The judge therefore enjoined the defendants from forcibly medicating patients except in an "emergency," which the judge defined as "circumstances in which a failure to [medicate forcibly] would bring about a substantial likelihood of physical harm to the patient or others." Id. at 1371. 6

The defendants appealed the decision enjoining forcible medication of patients absent an emergency. The plaintiffs cross-appealed from the denial of their claims for damages. The Court of Appeals affirmed the denial of the damage claims, but vacated and remanded the issue of injunctive relief in light of its opinion. Rogers v. Okin, 634 F.2d 650 (1st Cir.1980) (hereinafter cited as Rogers II ).

In its opinion, the court concluded that the mentally ill have a constitutionally protected right to decide whether to be treated with antipsychotic drugs, id. at 653, and that involuntarily committed patients are presumed to be competent to assert that right in their own behalf, id. at 658-659. However, that court modified the trial judge's decision in two respects. First, it determined that the "substantial likelihood of physical harm" standard, application of which the judge required prior to forcible administration of antipsychotic medication, is too narrow, and that the hospital physicians could use their discretion in deciding to administer drugs forcibly, after balancing the interests of the patients against the State's police power interest in preventing violence within the institution. The court remanded for the District Court to design procedures to ensure that patient interests would be adequately protected. Id. at 656-657. Second, the Court of Appeals concluded that the judge's definition of an "emergency" in which a patient could be treated against his will was too limited. The Court of Appeals expanded the meaning of emergencies to include those situations in which an incompetent patient's health would significantly deteriorate without medication. Id. at 659-660. The case was remanded on this issue for the judge's consideration of expeditious methods for determining incompetence when delay would be harmful. Id. Furthermore, the court held that the Commonwealth need not seek individualized guardian approval for decisions to treat patients with antipsychotic drugs. Id. at 661.

The United States Supreme Court granted the defendants' petition for a writ of certiorari, in which they sought review of the Court of Appeals' decision on the issue of forcible medication of involuntarily committed patients. In mid-1982, the Supreme Court vacated the judgment and remanded the case to the Court of Appeals for a determination of the extent to which the patients' substantive and procedural rights are protected under Massachusetts law, thus declining to reach the constitutional issues unnecessarily. Mills v. Rogers, 457 U.S. 291, 305, 102 S.Ct. 2442, 2451, 73 L.Ed.2d 16 (1982). 7 On remand, the Court of Appeals certified nine questions to this court.

Questions 1, 2, and 3. Competence of involuntarily committed patients to make treatment decisions; judicial determination of incompetence. 8 "No person shall be deemed to be incompetent to manage his affairs, to contract, to hold professional or occupational or vehicle operators licenses or to make a will solely by reason of his admission or commitment in any capacity to the treatment or care of the [Mental Health] department or to any public or private facility." G.L. c. 123, § 25, inserted by St.1970, c. 888, § 4. See 104 Code Mass.Regs. § 3.10(2)(6) (1978). A judge may order the civil commitment of a person after a hearing only if he finds that the person is mentally ill and that the person's failure to be committed would create a likelihood of serious harm. G.L. c. 123, §§ 7, 8. The Legislature defined "[l]ikelihood of serious harm" as "(1) a substantial risk of physical harm to the person himself as manifested by evidence of threats of, or attempts at, suicide or serious bodily harm; (2) a substantial risk of physical harm to other persons as manifested by evidence of homicidal or other violent behavior or evidence that others are placed in reasonable fear of violent behavior and serious physical harm to them; or (3) a very substantial risk of physical impairment or injury to the person himself as manifested by evidence that such person's judgment is so affected that he is unable to protect himself in the community and that reasonable provision for his protection is not available in the community." G.L. c. 123, § 1, as amended through St.1980, c. 571, § 1. There is no requirement that a person be incompetent in order to be committed.

The first two definitions of likelihood of serious harm "provide no adjudication of judgmental capacity; commitment is based on a determination of risk of physical harm to the individual or to others." Rogers II, supra at 658. Put simply, such a commitment is for public safety purposes and does not reflect lack of judgmental capacity. The third definition, although more relevant to the person's judgmental abilities, says nothing concerning his competence to make treatment decisions. A person may be competent to make some decisions, but not others....

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