Reprinted with permission of the author.
By Paul F. Stavis, Counsel to the Commission
1993 produced new developments in mental hygiene law both by federal and state courts, as well as some new research by clinicians concerning the wisdom of court review of patient objection to psychotropic medication. This column will discuss these developments.
Involuntary Commitment and Treatment
There are not many issues in the field of mental hygiene law which raise more controversy than that of involuntary commitment and treatment. The courts have unequivocally recognized that involuntary treatment by the government is a substantial deprivation of liberty, and therefore falls under the aegis of the Fourteenth Amendment of the U.S. Constitution as well as similar clauses of the constitutions of various states.(1)
Since the 1960's, there has been a clear trend towards increasing the quantity and quality of due process which must attend involuntary treatments. In many decisions of federal and state courts, "due process" has been held to include the right to confront the state's psychiatrists to require a heightened standard of proof ("clear and convincing evidence"); assistance of counsel; jury trial; the right to appeal, etc.(2)
In regard to involuntary commitment there were two developments by caselaw in 1993 which will affect the psychiatric patients under the current laws of New York State--one decision from the U.S. Supreme Court and the other decision by New York State's highest court, the Court of Appeals.
Heller v. Doe(3)
The Supreme Court struggled to a five to four vote in a Kentucky case involving statutes which provided two different standards of civil commitment, one for persons with mental retardation and another for persons with mental illness. To civilly commit a person with mental illness, the state of Kentucky would be required to show "beyond a reasonable doubt" (the highest standard of proof known to law and that which is routinely used in criminal cases) that there exists a danger to self or others, that treatment would be beneficial and would be the least restrictive treatment available.
However, for a person with mental retardation, the state statute would apply a lesser standard of proof (i.e., it would be easier for the state to prove) called "clear and convincing" evidence. In addition, the statute made another significant distinction. An option was given to a family member and/or guardian of the person with mental retardation to participate in the court hearing, but did not give such a similar right in a commitment hearing for the family or guardian of a person with mental illness.
The constitutional issue presented to the Supreme Court was whether this violated the "equal protection" clause of the Fourteenth Amendment because it treated persons with mental disability differently for purposes of civil commitment. It has long been settled law under the Equal Protection Clause that persons may be treated differently if there is a rational reason for doing so. The majority opinion of the Court (written by Mr. Justice Kennedy) found three rational reasons that justified the Kentucky's dual standards: (1) mental retardation is easier to diagnose than mental illness and is less likely to be misdiagnosed (i.e., there is less chance of error by the state's decision makers so the state need not be held to a more difficult standard of proof); (2) mental retardation is less likely to change or change dramatically, is usually well documented in childhood, and dangerous behaviors are more predictable; and (3) the treatment for mental retardation is usually less intrusive than that for mental illness, because the latter involves probing into a person's innermost thoughts.
In terms of the differences in the participation of family members or guardians in the judicial hearing, the Supreme Court found that the participation of family members or guardians as a matter of legal right for a person with mental retardation made rational sense because such persons were more than likely involved with that person from childhood and beyond, and more importantly could likely provide the trial court with valuable information. In contrast, the family of a person with mental illness was not as likely to be involved with his or her treatment and condition, nor as often to possess relevant information that would be useful to the trial court.
Four of the nine justices dissented. One of the most important points made in the dissents was that the majority opinion analyzed the case solely from the point of view of the state, its interests and its burdens of proof. Rather, the dissent argued that the case should be looked at from the point of view of the person with mental disability who is facing commitment. From that person's point of view, the interest to remain free of state control and involuntary treatment was equally strong and compelling no matter what mental disability was involved and no matter how invasive the treatment involved. In short, both a person with mental illness and a person with mental retardation have a right to be free of government intrusion into their lives; neither person's freedom should be valued over the other's.
While this case may have many ramifications, its principal one is that disparate treatment among mental disabilities might be justifiable and does not violate the Equal Protection Clause as long as it has a rational relationship to legitimate state purposes or interests.
The Committing Court's Role in Prescribing Treatment: Matter of Chenier(4)
This case involved a judicial hearing for the civil commitment of a person with mental illness who was previously admitted as a voluntary patient and now wanted to be discharged, but who the facility thought was in need of further care and treatment as an involuntary patient. After a hearing, the committing judge agreed with the state on the need for further treatment, but conditioned his order of involuntary commitment upon two things: (1) that the psychiatric facility assign a different psychiatrist than the one assigned; and (2) that the patient reside on an "open ward" rather than a more restrictive setting such as a locked ward. Without much discussion the state's highest court, the NY Court of Appeals, held that pursuant to a New York commitment statute:(5) "the [committing] court did not have the power to impose the treatment related conditions as part of its retention order." The court also implied by the citations of two of its precedents, that the courts of New York do not have the authority to oversee "wisdom of the medical policy underlying the treatment"(6) of psychiatric patients, but rather may only seek to enforce specific statutory rights. Since there is no statutory provision permitting a court to dictate the condition of treatment pursuant to a retention hearing/order, the court held it was beyond the court's jurisdiction to do so. Therefore, a court may only decide whether a person is suitable to be committed, but not what or how treatment is administered by the psychiatric/health professionals once admitted to a mental hygiene facility.
Involuntary Treatment with Psychotropic Medication—A New Empirical Study
While one of the precedents cited in the Chenier case, Bezio v. NY Office of Mental Retardation and Developmental Disabilities,(7) held that courts should not generally delve in the "appropriateness of treatment" but only on the "suitability" of the patient to be an involuntary patient, the other precedent in the Chenier case stood for a seemingly contradictory proposition that courts can intervene with great specificity for instances of involuntary psychiatric treatment with psychotropic medications. The second precedent is the well known case of Rivers v. Katz.(8)
The Rivers case held that a psychiatric patient who, after being judicially committed as "being in need of [psychiatric] care and treatment, still retains presumptive competency to object to psychotropic drugs." Moreover, the court held that a patient's objection can only be overcome by a judicial, not a medical, determination. Although the use of the word "judicial" by the court is ambiguous (i.e., was it meant literally as a court of law as established by the state constitution, or was it meant to have generic meaning such as a proceeding having the fundamentals of due process as, e.g., in an administrative hearing), most courts and lawyers have interpreted it to mean that an actual court of law must hold the hearing as opposed to an administrative body.
In contrast to the "hands-off" rationale of the Chenier case, based upon the generalizations in Bezio, the Rivers decision stands in dramatically sharp contrast because it not only established the so-called right to refuse psychotropic drugs as a matter of state constitutional law, but it went on to suggest that the court which makes such determination of a patient's competency to object, should also delve very deeply into the wisdom of the particular psychotropic drug being proposed. Rivers mandated that the hearing court determine by clear and convincing evidence: all relevant circumstances, benefits, adverse reactions, and less intrusive treatment for the proposed psychotropic medication. It secondarily suggested, by use of a footnote, that the trial court engage in even more searching inquiries such as determining the patient's: cognitive ability; understanding of options; interfering pathologic perception or belief; absence of interfering emotional state; absence of pathological motivational pressure; conviction of helpless dependency; absence of helpless dependency on another person; awareness of how others view the decision, including society generally; and the patient's reasons for deviating from the social norm.(9)
Although studies of the impact of Rivers have been done before,(10) there is a new study that looks at its impact now that a substantial time has past and the law of this case has not only become well established, but is being expanded by state agencies and by new legislation into other areas of general medical care.(11) this new study entitled: "Medication Refusal and Judicial Activism: A Reexamination of the Effects of the Rivers Decision,"12 comes to the ironic conclusion that "the Rivers effect runs counter to the goals of the Rivers decision" and warns other states to be wary before adopting judicial hearings as a mode of resolving patient objection to psychotropic drugs.
This study was carried out in two settings, a psychiatric service of a private university having 107 out of 800 psychiatric beds (1,250 admissions per annum), and a state-operated psychiatric hospital with a census of 850 patients (1,300 admissions per annum). All patients were involuntarily hospitalized and had a great variety of demographic characteristics, e.g., elderly, persons from minority groups, chronically mentally ill, etc.
The results from this study were largely the opposite of what was apparently intended by the court in its Rivers ruling. Remembering that prior to Rivers, the state (and many private hospitals) used an informal administrative system to resolve objections to psychotropic medications, this study found that the number of patients initiating the more formal judicial proceedings mandated by Rivers declined dramatically (from 107 to 32). Significantly, especially for some patients, the mean time from the beginning of the objection to its resolution increased greatly: for the state hospital it went from approximately 21 days to 68 days; and at the private hospital from 10 days to 77 days. The authors noted that some patients had hospitalization insurance that lasted only for 30 days. In such cases, the lengthy resolution time effectively strips them of insurance coverage if, as in over 98% of the cases, the court eventually authorizes the psychotropic drug treatments and expenses are thereby incurred.
The authors note that before the Rivers decision previous data indicated that the rate of patient refusals for psychotropic medication was stable. Their interviews with staff explained the reasons why, which were that patients were actually encouraged to write an objection to initiate the informal process of administrative appeal. The staff considered this administrative system not only efficient and effective but also helpful to the therapeutic relationship they had with the patient by getting the patient to articulate his or her concerns and to have them addressed by the medical staff.
However, after Rivers, staff were hesitant to encourage litigation, which not only involved lawyers who could often veto the proceedings by viewing a particular case as too weak to proceed, but which also required enormous resources and delay for the hospital staff and the patient as well. The authors state that in virtually every instance of appeal to the judiciary, the court ordered the proposed treatment. Furthermore, it was observed that:
For patients in this study, the reasons for refusing medication were rarely independent of ongoing psychiatric illness. When medication refusal was not directly related to illness, patients' concerns were usually accommodated, and medications were delayed, reduced, or changed.(13)
The authors conclude that they could identify "no patients who benefited from the Rivers decision."(14) Consequently, the authors raise the question of whether the patients' liberty is actually limited rather than fully realized by permitting a drawn out, expensive and disruptive judicial hearing when in almost every case the court will eventually ratify the treatment decision, and where the refusal is more often than not symptomatic of the mental illness. Not surprisingly, the previous studies have also questioned the wisdom of insinuating the cumbersome judicial process in the treatment of mental illness.(15)
Involuntary treatment for treatment of mental disability is unquestionably the most severe action a government can impose upon an individual, short of a criminal charge and conviction. Indeed, in many respects, civil commitment has been compared to a criminal sentence in that both deprive the individual of his or her liberty, usually involve forced residence in an impersonal institution, subject the persons to indignities of many sorts as well as to the general control of the variety of persons who run the institution. And, in the case of forced treatment, a person can well be subjected to extremely distasteful side effects, dangers of short term and long term related disabilities and conditions, and the possibility of drug errors which may result in serious harm, including death in some instances.
The countervailing considerations are that involuntary treatment is almost always used as a last resort, when there is not only a demonstrated need but when there is the potential for judicial review to substantiate that need for treatment. Furthermore, as noted in this latest study, it can be the case that treatment refusal for patients with mental illness is a symptom of the illness rather than a reasoned decision of their free will.
The question which these cases and the cited study focus upon is the proper role of the court in these processes. No one disagrees with the role of a court as an ultimate safeguard of a person's rights. Rather, the issue is when and how often should the court intervene in the method of treatment of a patient. Clearly, the courts as evinced by the recent Chenier case and its rather ambiguous citations of precedents, and the contrasting approach taken by Rivers, do not have a coherent method for deciding the appropriateness of court intervention. The results of this study lead one to wonder whether the courts have adequately considered the disruption that judicial appeals have on treatment and the extraordinarily low success of patient objections.
On the other hand, the study discussed here might have its own limitations. It compares the pre-Rivers administrative hearings to deal with patient objections to medication (which patients were encouraged to participate in) with post-Rivers judicial hearings (which patients were discouraged from pursuing). What the study does not look at is comparable populations since it does not examine what happened to the patients who were discouraged from filing formal objections post-Rivers, or to the refusing patients whose cases the lawyers refused to take to court: How did they fare? Did they negotiate an alternative course of acceptable treatment? How quickly were these decisions made? Did they get treatment? Were they left untreated because of their objections? It well might be the case that the onerousness of a Rivers lawsuit forced psychiatrists to be more accommodating to patients and thereby to have satisfied their concerns and obviated the need for litigation to justify treatment. Rivers is certainly a source of power to a patient who knows he or she has a right to object, but not for other patients who do not.
A definitive study on the effect of Rivers has yet to be done, examining all of the effects of that decision upon the rights of patients to have an active voice in their treatment. While studies have consistently reported that objecting patients "win" very few cases that are resolved either by the courts or in administrative hearings, there has been little critical examination of all of the negotiation and compromises between patients and psychiatrists to avoid such hearings. There is little in the court records, or even clinical records, about this phenomenon, but anecdotal evidence suggests that this may in fact be the most important outcome of the "right to refuse" cases. If this is the case, then the question that needs further examination is whether such negotiation and compromise between patients and psychiatrists are preferable from both an administrative and clinical perspective to the pre-Rivers administrative hearings which patients usually "lost," even at the price of a greatly diminished number of time-consuming judicial hearings in cases of formal objection to treatment.
True and complete communication between a doctor and patient was the most fundamental recommendation made by the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research. This Commission said:
Indeed, this Commission believes that serious efforts by health care institutions to ensure that patients have one identifiable and reliable source of information concerning their care would do far more to remedy the current ills of the health care system than would legal prescriptions with which compliance can neither be assured nor enforced.(16)
The question becomes: are psychiatrists and physicians more sensitive to this obligation when exposed to the onerous possibility of litigation?
1. See generally, Developments in the Law, Civil Commitment of the Mentally Ill, 87 Harv. L. Rev. 1191 (1974).
2. S.J.Brakel, J. Parry & B, Weiner, The Mentally Disabled and the Law, (3rd. Ed. 1985) at pp. 66 - 71.
3. _____ U.S. _____, 61 U.S.L.W. 4728, (No. 92-351, June 24, 1993).
4. _____ N.Y. 2d _____, (Case No. 200, Nov. 11, 1993).
5. NY Mental Hygiene Law, Section 9.13 (b).
6. See, Bezio v. NYS OMR/DD, 62 N.Y.2d 921, 924 (1984).
8. 67 N.Y. 2d 485 (1986).
9. Id., at note 7 (Citing, Michels, Competence to Refuse Treatment, at pp. 115, 117-118, contained in Refusing Medication in Mental Health Institutions -- Values in Conflict, Doudera, Swazey (ed.).)
10. See, Ciccone JR, Tokoli JF, Clements CD, Gift TE, "Right to Refuse Treatment: Impact of River v. Katz", 18 Bull. Am. Acad. Psychiatry Law 203 (1990); and, Cournos F, McKinnon K, Adams BA, "A Comparison of Clinical and Judicial Procedures for Reviewing Requests for Involuntary Medication in New York, 39 Hospital and Community Psychiatry 851 (August, 1988).
11. See, e.g., N.Y. Public Health Law, Art. 19-C, Section 2983 (d)(5).
12. 44 Hospital and Community Psychiatry 555 ( June, 1993).
13. Id., at 559.
15. See supra note 10.
16. Making Health Care Decisions: The Ethical and Legal Implications of Informed Consent in the Patient-Practitioner Relationship, Vol. One (Oct. 1982), at p. 33.