Petition — Mills v. Rogers

irn Court, U.S

80-1417 halla

' FEB 23 196)

— ALEXANDER L. Srevas,

CLERK

No.

OCTOBER TERM, 1980

SUPREME COURT OF THE UNITED STATES

ROBERT OKIN, MICHAEL GILL AND

WILLIAM MALAMUD,

Petitioners,

v.

RUBIE ROGERS, ABLE BOLDEN, BETTY BYBEL,

JAMES COLLERAN, DONNA HUNT, WILLIE WADSWORTH,

AND HAROLD WARNER,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF

APPEALS FOR THE FIRST CIRCUIT

FRANCIS X. BELLOTTI

ATTORNEY GENERAL

Stephen Schultz

Administrative and Legal

Counsel to the Massachusetts

Attorney General

One Ashburton Place, Room 2001

Boston, Massachusetts 02108

Telephone: (617) 727-4538

when

QUESTIONS PRESENTED

I. Whether involuntarily committed mental patients have

a constitutional right to refuse treatment with

antipsychotic medication?

2. Whether the principles of federalism were violated

when the United States Court of Appeals for the First

Circuit remanded this case to the trial court to design

creative procedural mechanisms for implementing a right

to refuse treatment rather than allowing the state official

defendants (who were found to have acted in good faith,

in accordance with acceptable medical practice and not

to have violated "clearly established constitutional

rights") to develop their own procedures?

-2-

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED 1

TABLE OF CONTENTS 2

TABLE OF AUTHORITIES 4

OPINIONS BELOW 7

JURISDICTION 7

CONSTITUTIONAL PROVISIONS, STATUTORY

PROVISIONS AND REGULATIONS 8

STATEMENT OF THE CASE a

ARGUMENT 16

I. AN INVOLUNTARILY COMMITTED MENTAL

PATIENT'S CONSTITUTIONAL RIGHT TO

REFUSE TREATMENT RAISES IMPORTANT

QUESTIONS WHICH SHOULD BE DECIDED

BY THIS COURT. 16

A. General Importance of This Case 16

B. Im ant Problems With The First

reuit on 21

1. There Is No Constitutional

Foundation for the Creation

° t to Refuse atment

or Involuntar mmitt

Mental Patients 21

2. Involuntarily Committed

Patients Do Not Have A

0 0

de t

Restrictive Manner 24

-3-

3. The Commonwealth's Rig to

reat Involuntar ommitted

Patients Should Not Be Tied to

ei termination o

ncompetency

4. The First Circuit's Definition

of an Emergency Situation

Justifying 2 Medication

oo Narrow

5. The First Circuit's Opinion Has

Been Interpreted By the Trial

ourt a 1 to Vacate Its

I. THIS COURT SHOULD ISSUE A

WRIT OF CERTIORARI AS THERE

IS A CONFLICT IN THE COURTS

REGARDING A PATIENT'S RIGHT

TO REFUSE ANTIPSYCHOTIC MEDICATION

Il. THE FEDERALISM ISSUES IN THIS

CASE ARE IMPORTANT AND SHOULD

BE SETTLED BY THIS COURT

CONCLUSION

Appendix A, First Circuit Opinion

Appendix B, First Circuit Judgment

Appendix C, District Court Opinion

Appendix D, District Court Order

and Judgment

Appendix E, First Circuit Order of Court, 1/28/81

Appendix F, District Court Transcript, 12/18/80

Appendix G, Constitutional Provisions,

Statutes and Regulations

26

29

31

37

*

TABLE OF AUTHORITIES

Cases

Beal v. Doe, 432 U.S. 438 (1977)

Bell v. Wolfish, 441 U.S. 520 (1979)

Breithaupt v. Abram, 352 U.S. 432 (1956)

Calhoun v. Harvey, 379 U.S. 134 (1964)

Curtis v. Loether, 415 U.S. 189 (1974)

Davis v. Hubbard, 49 U.S.L.W. 2215

(U.S. D. C. N.Ohio, September 30, 1980)

Goedecke v. State Department of

Institutions, Colo. , 603

P. 2d 123 (1979)

Gulf States Steel Co. v. United States,

287 U.S. 32 (1932)

In the Matter of the Alleged Mental

Illness of Paul Fussa, (Docket No.

469, Minn. S. Ct., June 14, 1976)

In Re KKB, 609 P.2d 747 (Okla. 1980)

Jacobson v. Massachusetts, 197 U.S. 11 (1904)

O'Connor v. Donaldson, 422 U.S. 563 (1975)

Parham v. J.R., 442 U.S. 584 (1979)

Price v. Shepard, 307 Minn. 250,

239 N.W. 2d 905 (1976)

Rennie v. Klein, 462 F. Supp. 1131

(D.N.J. 1978)

Rennie v. Klein, 476 F. Supp. 1294

(D.N.J. 1979)

Page

39

43, 44

24

39

39

39

39

39

37, 38

39

23

20

20, 41, 44

37, 38

20, 39

39

Cases

Rizzo v. Goode, 423 U.S. 362 (1976)

Rochin v. California, 342 U.S. 165 (1952)

Roe v. Wade, 410 U.S. 113 (1973)

Sanchez v. New Mexico, 396 U.S. 276 (1970)

Schmerber v. California, 384 U.S. 757 (1966)

Sheldon v. Tucker, 364 U.S. 479 (1960)

State v. Sanchez, 80 N.M. 438, 447 P.2d

370 (1960)

Whalen v. Roe, 429 U.S. 589 (1976)

Articles and Books

Anderson and Kuehnle, Strategies

for the Treatment of Acute

Psychosis:, Journal of the

American Medical Association,

September 30, 1974.

Barron and Dienes, Handbook of Free

Speech and Free Press (1979)

"Developm ents in the Law - Civil

Commitment of the Mentally I“,

87 Harvard L. Rev. 1190 (1974)

Frazier, "Comprehensive Management of

Psychiatric Emergencies", 9

Psychosomatics 7 (1968)

Nowak, Rotunda and Young, Handbook on

Constitutional Law (1978)

Page

41, 42, 43

24

21, 22

24

24

24

24

22

19

22

28

24

8

Page

Stone, "Recent Mental Health Litigation:

A Critical Perspective:, 134 American

Journal of Psychiatry 273 (1977) 35, 36

Statutes

Massachusetts General Laws, c. 123, 84 27

aa

OPINIONS BELOW

The opinion of the Court of Appeals, not yet

reported, appears in the Appendix hereto. The opinion of

the District Court for the District of Massachusetts is

reported at 478 F.Supp. 1342 (D. Mass. 1979) and appears

in the Appendix hereto.

JURISDICTION

The judgment of the Court of Appeals for the First

Circuit was entered on November 25, 1980. This petition

for certiorari was filed within 90 days of that date. This

Court's jurisdiction is invoked under 28 U.S.C. S 2101(c).

*

CONSTITUTIONAL PROVISIONS, STATUTORY

PROVISIONS AND REGULATIONS

United States Constitution, Amendment Nine

United States Constitution, Amendment Fourteen

Section |

Massachusetts General Laws ce. 123, § 1

Massachusetts General Laws e. 123, § 4

Massachusetts General Laws e. 123, § 7

Massachusetts General Laws e. 123, § 8

Massachusetts General Laws g. 123, § 23

Massachusetts General Laws c. 123, § 25

Massachusetts D ment of Mental Health

ations R

Massachusetts D tment of Vental Health

Regulations, 5 323.03

-9-

STATEMENT OF THE CASE

On April 30, 1975, seven mental patients filed a

complaint in the United States District Court, District of

Massachusetts, seeking a permanent injunction and

temporary restraining order ("TRO") enjoining the

petitioners from forcibly confining in seclusion or

medicating the patients and all other in-patients of the

Austin and May Units, located at Boston State Hospital,

without their consent or the consent of their guardians

except where there was a serious threat of or as a result

of, extreme violence, personal injury or attempted

suicide. Jurisdiction was invoked under 42 U.S.C. § 1983.

On April 30, 1975, the trial court issued the temporary

restraining order sought by plaintiffs.

Despite attempts by the petitioners to hold a

hearing forthwith on plaintiffs' motion for a preliminary

injunction and to dissolve the TRO, the TRO remained in

effect until the issuance of a permanent injunction by the

trial court on October 29, 1979.

On December 8, 1977, the trial of the case began in

the District Court. The trial combined both the

injunctive issues discussed in this petition and

twenty-eight malpractice and civil rights cases brought

against individual doctors. Seventy-two days of testimony

were taken and the evidentiary portion of the trial

concluded on January 31, 1979.

-10-

On October 29, 1979, the District Court issued an

order and judgment which stated, in relevant part "that

the defendants, their agents and employees, are

restrained from forcibly . . . medicating the plaintiffs and

all other inpatients of the Austin and May Units, and

successor units, of the Boston State Hospital without the

patient's consent or the consent of the patient's guardian,

if any, except where there is a substantial likelihood of,

or as a result of, extreme violence, personal injury or

attempted suicide." Appendix, pp. 162a-163a. The trial

court also found that the defendants acted in good faith,

in accordance with standards of reasonable medical

practice, and did not violate any clearly established

constitutional rights. Appendix, pp. 139a, 140a, 149a,

150a. Accordingly, the trial court denied all damage

claims against the defendants.

The trial court's permanent injunction, as well as its

temporary restraining order, required a change in

medication practices at the Austin and May Units from

those practices which existed before court intervention.

First Circuit Appendix pp. 356-357, 293-304 (J-321-328,

J-86-92). Moreover, the court's orders prohibited what

was standard medical practice before the court's

intervention. First Circuit App. pp. 308-311 (J-108-123),

The trial court's order limited the forcible use

ele

of therapeutic medication to the same situations

justifying the use of restraints such as seclusion. Before

the trial court's orders, patients at times were forcibly

medicated in psychiatric emergencies, although their

conditions would not have justified the use of seclusion

and did not constitute a serious threat of personal injury

to themselves or others. First Circuit App. p. 302 (J-88).

In circumstances not presenting an immediate physical

threat to the patient or others, the court's order

prohibited the use of forcible medication even (1) when it

was a necessary treatment to alleviate severe psychic

suffering or acute psychosis, and (2) even when it was

necessary to prevent a patient from deteriorating to a

point where he may later present a serious physical threat

to himself or others. First Circuit App. pp. 346-348,

352-354 (J-282-290, 308-316). The court's opinion required

use of the cumbersome guardianship process even when

the patient continued to suffer pending the delays

inherent in the court procedure.

Defendants Okin (Commissioner of the

Massachusetts Department of Mental Health), Malamud

(inpatient director of the Solomon Carter Fuller Mental

Health Center, which is the May Unit's successor unit),

and Gill (former inpatient director of the Johnson Unit of

the Tufts-Bay Cove Mental Health Center, which is the

-12-

Austin Unit's successor unit) noticed their appeal to the

United States Court of Appeals for the First Circuit on

November 19, 1979, from that part of the Court's order

enjoining the forcible use of antipsychotic medication.

On November 25, 1980, the First Circuit issued its opinion.

The First Circuit affirmed the trial court's denial of

damages. The First Circuit agreed that the record

supported the trial court's findings that (1) defendants had

acted in subjective good faith, (2) defendants had not

violated "clearly established" constitutional rights, and (3)

defendants had not acted negligently. Appendix, pp.

32a-33a, 37a.

The First Circuit also agreed with the trial court's

ruling that antipsychotic medication cannot be forcibly

administered to involuntarily committed mental patients

solely for treatment purposes absent an additional judicial

finding of incompetency. Appendix, p. Ida. On the other

hand, the First Circuit apparently broadened the trial

court's definition of emergency, declaring that patients

could be forcibly medicated without a declaration of

incompetency (1) where a doctor belives in his professional

judgment that the medication is necessary to prevent

potential violence, pp. 7a-l5a, and (2) where any delay

could result in significant deterioration of the patient's

mental health. Appendix, pp. 24a-26a.

-13-

The First Circuit specifically declared:

Defendants' second basic complaint is that

the necessity of finding a "substantial

likelihood of physical harm. . . (See note 3,

supra) is an overly rigid and unworkable

requirement.

It does appear that the district court may

have overlooked or misconstrued evidence of

specific acts of violence occurring as a result

of defendants' difficulty in applying the court's

standard.

The professional judgment-call required in

balancing these varying interests and

determining whether a patient should be

subjected to forcible administering of

antipsychotic drugs demands an individualized

estimation of the possibility and type of

violence, the likely effects of particular drugs

on a particular individual, and an appraisal of

alternative, less restrictive courses of action.

-14-

Not only do we deem out of place a

simplistic unitary standard for police power

emergency drug administration, but we see

particular problems in adopting such a

standard that can be interpreted as requiring a

prediction of more-probable-than-not violent

behavior.

Appendix, pp. 8a, 9a, lla, 12a.

Moreover, while the trial court's order forbid

forcible medication in a non-emergency without the

consent of the patient's guardian, the First Circuit stated:

.. . [A]s a constitutional matter, the state is

not required to seek individualized guardian

approval for decisions to treat incompetent

patients with antipsychotic drugs.

Appendix, p. 30a.

The First Circuit issued an order declaring:

Judgment affirmed in part, reversed in part,

and vacated and remanded for further

proceedings in accordance with this opinion.

Appendix, p. 39a.

The First Circuit remanded the case to the trial

court with instructions "to be creative in designing

procedural mechanisms" to enforce a mental patient's

right to refuse treatment. Appendix, pp. l4a-15a.

-15-

Despite the apparent contradictions between the

First Circuit's opinion and the trial court's opinion and

despite the First Circuit's order vacating the judgment,

the trial court declared on remand on December 18, 1980

that as far as the trial court was concerned, its order

stands and was not vacated. Appendix, pp. 176a-178a. The

trial court indicated that in its opinion only its order

regarding voluntary patients had been reversed. On

December 22, 1980, the petitioners filed with the First

Circuit a motion to clarify its order in light of the trial

court's statements on December 18, 1980. On January 28,

1981, the First Circuit declined to clarify its opinion.

Appendix, pp. 164a-165a.

-16-

ARGUMENT

I, AN INVOLUNTARILY COMMITTED MENTAL

PATIENT'S CONSTITUTIONAL RIGHT TO

REFUSE TREATMENT RAISES IMPORTANT

QUESTIONS WHICH SHOULD BE DECIDED

BY THIS COURT.

A. General Importance of This Case

1. At issue in this case is the ability of state

hospitals to administer essential treatment to its

involuntarily committed mental patients. As the First

Circuit found in this case, It] oday . .. due in large part

to the development of numerous drugs for treating mental

illness, the possibility of improvement as a result of

forced treatment is relatively substantial.” Appendix at p.

lia. Testimony of two of the leading

psychopharmacologists in the country indicated that for

major mental illness, psychotropic drugs are a central

component of any treatment program. First Circuit

Appendix, p. 320 (J-152). Dr. Henry Brill, former

President of the American College of

Neuropharmacology, testified that after reading

thousands of articles on the subject, he has concluded that

there are no articles which show there is not a general

consensus as to the relative safety and effectiveness of

antipsychotic medication, and, to his knowledge, there has

never been a well designed study showing that

antipsychotic drugs are not relatively safe and effective.

First Circuit Appendix, p. 321 (J-161-162).

2. At issue in this case is whether the state has an

obligation to treat those persons whose freedom it has

taken away because of mental illness. No person in

Massachusetts can be committed solely because they are

dangerous. Rather, they must have been found to be

mentally ill. The state has an obligation to seek to

restore to freedom those persons whose freedom has been

taken away because of their sickness.

3. At issue in this case is the state's obligation to

prevent the needless suffering from mental illness of

those individuals so sick as to have been committed.

4. At issue in this case is the role of the state

hospital in society. Patients are committed to state

hospitals until they are treated. If the hospitals are then

denied the power to treat the patient over his objections,

our state hospitals will become, in fact, if not in name,

caretaking facilities, more akin to correctional

institutions than hospitals. Patients, who are not treated,

are warehoused.

5. At issue in this case is the ability to attract

doctors and staff to work in state hospitals. Restricting

forcible medication mandates doctors to treat patients in

a contrary fashion to what they believe to be proper

practice. To deny doctors the use of psychotropic

medication is to return them to the wards of the early

1950's, when the only treatments available for persons

suffering from major psychosis were seclusion rooms,

-18-

shock therapy, hot baths, wet sheets, straight jackets and

lobotomies. It is unreasonable to expect dedicated

doctors and staff, already underpaid and working with the

sickest and most dangerous of mental patients, to

continue to work at state hospitals under these conditions.

6. At issue in this case is the ability of states to

continue reducing state hospital populations. Before the

introduction of antipsychotic drugs, there never had been

a time in the history of mental hospitals, which goes back

for some 200 years, when there had been a reduction of

population, despite efforts to do away with the hospitals,

to close the hospitals, or to reduce their populations.

First Circuit App., p. 334 (J-218). However, when

antipsychotic drugs were introduced, the increase of

population stopped, the behavior in the hospitals improved

and subsequently there has been a decrease of mental

hospital population of rather spectacular proportions.

First Circuit App., pp. 334-335 (J-219-222). Because of

antipsychotic medication, community programs are now

possible for many patients who previously required

hospitalization. First Circuit App., p. 335 (J-225).

Furthermore, the widespread use of pharmacotherapeutic

agents has also reduced the duration of hospitalization for

patients at mental hospitals to a fraction of the previous

duration. First Circuit App., p. 335 (J-223).

-19-

7. At issue in this case is whether cumbersome

judicial procedures must be followed to make treatment

decisions for involuntarily committed patients. The First

Circuit would require a judicial declaration of

incompetency before an involuntarily committed patient

can be forcibly treated in a non-emergency. The trial

court order still in effect requires the consent of a

guardian before a patient can be forcibly medicated.

Guardianship hearings can result in temporary or

permanent deprivation of needed attention, loss of a

patient's remaining legal rights, the patient's escape

pending the hearing, and the creation of an adversarial

relationship with the doctor petitioning for the

declaration of incompetency.

8. At issue in this case is the state's ability to

protect patients and staff from preventable violence.

Under the trial court order still in effect a patient cannot

be forcibly medicated unless there is a substantial

likelihood of violence. All acutely psychotic psychotic

patients (i.e., those patients at state hospitals) have the

potential for impulsively committing a dangerous act.

Anderson and Kuehnle, "Strategies for the Treatment of

Acute Psychosis", Journal of the American Medical

Association,’ September 30, 1974, at 1884-1886.

(J-299-302). Given this potential for impulsive violence,

-20-

the failure to medicate a patient forcibly increases the

chances of such an impulsive act being committed. This

potential for violence is particularly disturbing given the

evidence in both this case, First Cir. App., p. 342 (J-262)

and in Rennie v. Klein, 462 F.Supp. 1131, 152, n. 1 (D. N..

1978) that one patient refusing medication frequently sets

off a contagion of refusal.

9. At issue in this case is whether the law should

prevent potential abuses of forced medication not found

in the record below or whether it should permit state

hospitals to function effectively on a day-to-day basis.

See Parham v. Z. R., 442 U.S. 584, 612 (1979)("That there

may be risks of error in the process affords no rational

predicate for holding unconstitutional an entire statutory

and administrative scheme that is generally followed in

more than 30 states.") Psychotic patients, by definition,

are not rational. If a person not in need of treatment is

wrongly treated in a hospital, the remedy is through an

individual action, challenging the propriety of the

treatment or hospitalization, and, if appropriate, seeking

monetary damages. O'Connor v. Donaldson, 422 U.S. 563

(1975). The remedy is not to grant the vast majority of

irrational people in need of treatment the right to refuse

that treatment.

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B. Important Problems With The First

Circuit Opinion

1. There Is No Constitutional

Foundation for the Creation of A

Bight to Refuse Treatment for

voluntarily Committed Mental

ee

The First Circuit declared that it was "intuitively

obvious" that a person has a constitutionally protected

interest in being left free to refuse antipsychotic

medication, although "{t] he precise textual source of this

interest is unclear". App, p. 4a. The First Circuit wrote

that the source of the right was "most likely” a part of

the penumbral right to privacy, bodily integrity or

personal security. App., p. 5a.

The First Circuit further incorrectly asserted that

none of the parties contest the correctness of the above

general proposition. App. p. 6a.

In fact, it is not surprising that the First Circuit had

such difficulty in identifying a specific constitutional

source for a right to refuse treatment, because there is no

precedent of this Court supporting such a right.

Roe v. Wade, 410 U.S. 113 (1973), remains the most

thorough and authoritative exposition by this Court of

that fundamental, constitutional right of privacy later

characterized as "the interest in independence in making

certain kinds of important decisions." Whalen v. Roe, 429

U.S. 589, 599-600 (1976). The Court in Roe v. Wade held

that "only personal rights that can be deemed

‘fundamental’ or ‘implicit in the concept of ordered

liberty’ . . . are included in this guarantee of personal

privacy.“ 410 U.S. at 152 (citations omitted).

The decisions surveyed in Roe v. Wade, 410 U.S, at

152-153, along with privacy decisions by this Court since

1973, make clear that the constitutional right of privacy

clusters closely around the related concepts of marriage,

family and procreation. In the Handbook of Free Speech

and Free Press at 369 (1979), Professors Barron and Dienes

note that this Court has not indicated that the

constitutional privacy right should be interpreted broadly

to protect all facets of the "right to be let alone".

The right of involuntarily committed mental

patients to refuse treatment is plainly not of the same

order or type as the interests accorded protection by

previous decisions of this Court. The fact that the

patients involved in this case are all institutionalized is of

primary importance. By definition, an institutionalized

person under the care and supervision of the state no

longer enjoys the privacy of a person living in his own

home; what would be private decisions for a person living

in his own home are inexplicably intertwined for the

institutionalized person with the interests of the state and

other patients.

As the right to privacy involved in this case is not

the fundamental constitutional right to make certain

personal decisions, the patients' right to privacy claim

must rest on a right to be free from bodily intrusion by

the government. However, as this Court noted in

Jacobson v. Massachusetts, 197 U.S. ll, 31+(1904), the

proper role for the judiciary in analyzing state impositions

upon bodily integrity is not to examine the efficacy of the

state's methods but only to inquire whether or not those

methods bear a "real and substantial relation" to

legitimate state objectives. The Jacobson Court thus

applied the classic "rational relation" test, concluding, in

effect, that the minimal intrusion into bodily integrity

which these injections entailed warranted only minimal

judicial scrutiny. Only in radically more extreme cases,

where the states power was "exerted in such

circumstances" as to be "arbitrary and oppressive" could

any stricter form of scrutiny be invoked. 197 U.S. at 38.

In more recent Fourth and Fourteenth Amendment

cases, the Supreme Court has held that bodily intrusions

-24-

will be upheld if they are not "brutal", "offensive" or

"shock the conscience". Rochin v. California, 342 U.S.

165, 172 (1952); Breithaupt v. Abram, 352 U.S. 432, 435

(1956); Schmerber v. California, 384 U.S. 757, 768 (1966).

To apply strict judicial scrutiny to unconsented touchings

which do not reach the threshold level of intrusiveness,

outlined in Rochin, Breithaupt and Schmerber, would be to

elevate what is at most a technical tort to the highest

level of constitutional protection.

The First Circuit, having failed to analyze the exact

nature of the "privacy" interests involved in this case,

"intuitively" decided that a fundamental constitutional

right was involved in this case. Thus, the First Circuit

never asked the proper question of whether forcible

medication is "brutal", "shocks the conscience" or is

rationally related to a legitimate state objective. Rather,

they improperly put the Commonwealth to prove that its

interests outweighed the interests of the patients in

refusing medication. App., p. 15a.

2. Involuntarily Committed Patients

Do Not Have A Constitutional

to be Treated inthe

P Restrictive Manner

The First Circuit found that implicit in the right to

refuse antipsychotic medication is an obligation on the

state to use less restrictive alternatives than forced

medication when available. However, in Sanchez v. New

Mexico, 396 U.S. 276 (1970), this Court dismissed, for

want of a substantial federal question, an appeal taken

from the New Mexico Supreme Court's decision in State v.

Sanchez, 80 N. M. 438, 457 P.2d 370 (1960). The New

Mexico Court had held, in a challenge to that state's civil

commitment statute, that "the policy which [plaintiff's]

counsel denominated as that of ‘Least Abridgment' has no

application to the case before us." Thus, if the doctrine

of least restrictive alternatives has no application to the

initial deprivation of ] verty, a fortiori it cannot apply to

individual treatment decisions made after commitment.

Moreover, as applied by this Court, the least

restrictive means test has never been more than an

adjunct to judicial strict scrutiny, employed to ensure a

precise means-end fit when legislation encroached upon

fundamental rights. See Sheldon v. Tucker, 364 U.S. 479,

498 (1960). Although "particularly important to the free

speech area," the test has occasionally "been applied in

non-speech areas, such as state regulation affecting

interstate commerce." J. Nowak, R. Rotunda, J. Young,

Handbook on Constitutional Law (1978) at 727. But even

when cast loose from its first amendment roots, the

function of the least restrictive alternative test has

remained constant: it is a mode of inquiry into the

constitutionality of legislation, and not into the propriety

of individual acts.

Finally, to subject every decision to medicate a

patient to the least restrictive means test would harm

patients by forcing physicians to concentrate on the

wrong questions. Rather than asking, in each instance,

what treatment would most benefit the individual patient,

the doctor would have to ask himself what treatment

would be viewed by a judge as the least restrictive

appropriate treatment. Such deliberations would

inevitably militate in favor of the least possible

treatment, short of total neglect.

3. The Commonwealth's Right to

Treat Involuntaril Commit thes

ts Should Not Be Tiled to

Patien'

etermination o

ncompeten

The First Circuit found that given the patient's

constitutional right to refuse treatment, in order for the

state to invoke its parens patriae interest as a

justification to treat an involuntarily committed patient,

in a non-emergency it must first obtain a judicial

determination that the patient is incompetent. The First

Circuit then concluded that under Massachusetts law

there is no determination of incompetency at the time of

-27-

commitment. The First Circuit failed to explain why

incompetency (rather than the taking away of a person's

freedom through commitment) is the sole factor relevant

to whether a state can exercise its parens patriae powers.

In fact, a determination of incompetency is

particularly inappropriate as the trigger to justify forcibly

medicating a patient. Competency to determine one's

need for psychiatric treatment can vary on a day-to-day

basis. First Cir. App., p. 402 (J-383, 384). In other words,

a patient's symptoms frequently vary on a day-to-day

basis affecting their competency. Thus, it makes no sense

to have to seek a judicial declaration of incompetency to

forcibly medicate a patient, when the same patient found

judicially incompetent may act competently the day after

the court determination.

The constant factor for a committed patient is his

mental illness. In Massachusetts, when a patient is no

longer in need of care for his mental illness, he must be

released from the hospital. Mass. Gen. Laws c. 123, § 4.

Whether or not the patient is competent on any given day

is irrelevant to whether the patient can be committed or

released and should be irrelevant to whether the patient

can be treated.

The court below failed to explain why the fact that

involuntary patients have been found to be mentally ill is

not justification for forcibly treating them. In fact,

involuntarily committed patients are considered so

mentally ill that society has decided to override their

failure to seek hospitalization voluntarily and their

implicit, if not explicit, objection to being hospitalized

for treatment. Given that these patients have already

been recognized as so mentally ill that their decision to

reject voluntary hospitalization and its treatment has

been overridden, it is illogical to accept the patient's

same objections to treatment once hospitalized.

The First Circuit quotes the following language

from an article entitled "Developments in the Law —

Civil Commitment of the Mentally Ill", 87 Harvard L.

Rev. 1190, 1344 (1974):

"Inherent in an adjudication that an individual

should be committed under the state's parens

patriae power is the decision that he can be

forced to accept the treatments found to be in

his best interest; it would be incongruous if an

individual who lacks the capacity to make a

treatment decision could frustrate the very

justification for the state's action by refusing

such treatments."

App., pp. 16a-17a. It is difficult to understand how the

First Circuit interprets this language to do

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anything but contradict its own conclusion that the fact

of commitment is insufficient justification for forcible

treatm ent.

4. The First Circuit's Definition of

Pepe edie Tete

orcible cation Is Too Narrow

The First Circuit recognized that patients could be

forcibly medicated where a doctor believed the

medication was necessary to prevent violence and where

any delay could result in significant deterioration of the

patient's mental health. App., pp. 7a-l5a, 24a-26a. It is a

mistake to limit the definition of emergency in a

psychiatric hospital to these two situations.

Dr. Shervert Frazier, chief psychiatrist at McLean

Hospital and former Commissioner of the Texas

Department of Mental Health, examined the results of a

survey conducted by the American Psychiatric

Association and the National Institute of Mental Health to

determine different definitions of psychiatric

emergencies employed by _ hospitals. Frazier,

"Comprehensive Managem ent of Psychiatric

Emergencies", 9 Psychosomatics 7 (1968). Of the 89

definitions received, Frazier concluded that only three

appeared to have been carefully thought through.

Specifically, Frazier suggested adopting the definition

-30-

that a psychiatric emergency is any urgent psychiatric

condition, functional or organic, for which immediate

treatment would increase or contribute to the patient's

likelihood of recovery, or provide urgently needed

protection. First Circuit App., p. 306 (J-100). Petitioners

suggested that a psychiatric emergency might also be

defined as a situation when a patient requires the prompt

initiation of medication treatment to prevent further

severe suffering by that patient or the rapid worsening of

that patient's clinical state. The First Circuit apparently

adopted one-half of petitioner's definition, but failed to

recognize the need to prevent severe suffering as a reason

for forcibly medicating a patient regardless of the

patient's competency.

Psychotic patients, whether or not dangerous or

incompetent, frequently experience intense suffering. are

terrorized by their illness and are in a state of internal

panic, unbearable agony, pain and distress. First Cir.

App., pp. 347-348 (J-288). The panic may manifest itself

in various physical signs, such as a great deal of

hyper-ventilation, clenching of fists, rapid breathing,

rapid pulse, pained facial expressions, or a terrorized look

in the eyes. Id. At least three doctors at trial testified

that to be psychotic is to suffer severely. First Cir. App.,

p. 347 (J-285-287). Thus, the failure to forcibly

31

medi cate patients who are acutely psychotic, even if they

are not in danger of significantly deteriorating, creates

unnecessary pain and panic for the patients. First Cir.

App., pp. 346-347 (J-283, 284). The First Circuit failed to

explain why the Constitution requires this "pain and

panic" for a "competent" person so mentally ill as to be

committed or an "incompetent" committed person pending

a competency hearing.

5. The First Circuit's Opinion Has

The trial court has interpreted the First Circuit's

opinion as upholding its original order. App., pp.

176a-178a. The permanent injunction in this case was

virtually identical to the temporary restraining order

issued in this case on April 30, 1975 and remaining in

effect through the conclusion of the trial approximately

three and one-half years later. The history of the

hospitals having to honor a patient's "right to refuse

treatment“ supports the Commonwealth's contention that

there is even a compelling state interest in forcibly

medicating patients.

The temporary restraining order had a deleterious

effect upon patient care, creating increased tension and

situations that were extremely difficult and dangerous.

-32-

First Cir. App., pp. 355-356 (J-319-320). See, generally,

First Cir. App., pp. 355-373 (J-319-377).

After the temporary restraining order, many

patients refused their medication. First Cir. App., pp.

357-358 (J-329-332). On any given day, approximately 10

to 12 patients would refuse medication. First Cir. App., p.

357 (J-330). There were a core of patients who refused

medication for prolonged periods. First Cir. App., p. 358

(J-332).

The inability to medicate forcibly acutely psychotic

patients not constituting serious threats of violence at the

time resulted in acts of violence down the road by some

of these patients refusing medication. First Cir. App., pp.

358-360 (J-333-360).

Other patients refusing medication were denied

inpatient care because the temporary restraining order

prevented staff from providing adequate treatment which

necessarily would have included the use of medication.

First Cir. App., pp. 360-361 (J-339-341), There were a

number of patients, however, refusing treatment, who had

to be "warehoused", as the expectation of their survival in

the community was so low it precluded release from the

protective custody of the hospital. First Cir. App., p. 361

(J-340).

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A number of patients after the temporary

restraining order found themselves caught in a vicious

circle. They refused medication until they deteriorated

to a point where they were forcibly medicated only to

improve enough from the medication to require that its

forcible administration be stopped, again causing their

deterioration. First Cir. App., pp. 361-363 (J-342-345).

The temporary restraining order resulted in

increased lengths of stay and prolonged unnecessary

psychic suffering for some patients. First Cir. App., pp.

363-368 (J-346-355). Patients, many of whom were

awaiting guardianship hearings, remained acutely

psychotic for months without receiving medication. First

Cir. App., pp. 363-364 (J347).

The temporary restraining order negatively affected

ward milieu and interfered with treatment relationships

between patients and staff. First Circ. App., pp. 368-370

(J-356-366). There was an atmosphere of violence on the

wards which did not exist before. First Cir. App., pp.

368-369 (J-357). Moreover, the restraining order created

an adversarial situation between patients and staff. First

Cir. App., p. 369 (J-358-359). Patients tested the staffs'

commitment to helping by refusing medication, and in

their own diseased minds, found that commitment wanting

-34-

when staff could not take firm measures. First Cir. App.,

pp. 369-370 (J-360-365).

Following the temporary restraining order, there

was an increase in the number of patients who needed to

be transferred to Bridgewater State Hospital, a maximum

security facility. First Cir. App., pp. 371-372

(J-367-370). Transfers to Bridgewater from the May Unit

were three to four times greater than before the

temporary restraining order, while transfers from the

Austin Unit were five to six times greater than before the

temporary restraining order. First Cir. App., p. 371

(J-367, 369).

Finally, the temporary restraining order had a

negative effect on the staffing of the Austin and May

Units. First Cir. App., pp. 372-373 (J-371-375). Staff

turnover at the Austin Unit approximately doubled after

the restraining order. First Cir. App., p. 372 (J-371). The

issuance of the restraining order contributed to the loss of

the psychiatric residency program at the May Unit's

successor unit, when it was concluded that the inpatient

service was too dangerous for a single resident to be

assigned to a ward. First Cir. App., p. 373 (J-375). Some

staff left, unable to watch patients deteriorate or suffer

-35-

who could have been treated with medication. First Cir.

App., p. 372 (J-373). It is a sad commentary that of the

fourteen defendants in this case, all well-educated and

trained and working at state hospitals during the period

covered by the suit, only two continue to work at a state

hospital today. First Cir. App., pp. 1871-1880 (B-8-21).

It is of considerable significance that while the

Commonwealth presented much evidence of the negative

effects of the temporary restraining order, the patients

did not present any evidence whatsoever of anyone who

benefitted from the order during the three and one-half

years it was in effect. Nor did the patients even call a

single witness to testify who disagreed with the

Commonwealth's appraisal of the disastrous effects of the

court's order.

Alan Stone, professor at Harvard Law School and

former President of the American Psychiatric

Association, commenting on the Rogers case, sums up, by

stating:

This scenario [at the Austin and May Units

after the temporary restraining order) has

developed despite the fact that the patient

census in this hospital is very small by state

-36-

hospital standards and the staff is far above

average in quality. Clearly, an unqualified

right to refuse medication would result in

serious harm to both patients and staff at this

and other hospitals, in which those confined

are increasingly selected for their

dangerousness rather than their medical

condition. As one reads this description, [fof

the Units] one can only conclude that the

courts are unwittingly reversing 200 years of

progress and transforming the twentieth

century dream of the mental health center

into the eighteenth century nightmare of

Bedlam. "Recent Mental Health Litigation: A

Critical Perspective,” 134 Am. J. of Psych.,

273, 278 (1977).

-37-

I. THIS COURT SHOULD ISSUE A WRIT OF

CERTIORARI AS THERE IS A CONFLICT

IN THE COURTS REGARDING A PATIENT'S

RIGHT TO REFUSE ANTIPSYCHOTIC

MEDICATION,

The First Circuit opinion directly conflicts with the

Minnesota Supreme Court's rulings in the cases of Price

v. Shepard, 307 Minn. 250, 239 N. W. 2d 905 (1976) and In

the Matter of the Alleged Mental Illness of Paul Fussa,

(Docket No. 469, Minn.S.Ct., June 14, 1976). In Price the

court asked "whether the state, consistent with [the

plaintiff's) right of privacy, can assume the decision of

whether [plaintiff], an invoiuntarily committed mental

patient, will undergo psychiatric treatment." 239 N.W, 2d

at 911. The case involved electroshock therapy, certainly

radically more intrusive than the drug therapy under

consideration in this case. The court concluded:

We observe that the more fundamental

decision, whether he was to undergo

hospitalization, was assumed by the state at

the commitment proceeding, the validity of

which is not contested.

.. . Under the circumstances of this case [the

state's] interest can be articulated as the need

for the state to assume the decision-making

role regarding psychiatric treatment for

-38-

one who, presumptively, based on the fact of

commitment on the basis of mental lines

is unable to rationally do so for himself. If

that interest of the state is sufficiently

important to deprive an individual of his

physicial liberty, it would seem to follow that

it would be sufficiently important for the

state to assume the treatment decision. We

hold that it is.

239 N. W. 2d at 911.

Although the Price court went on to condition the

non-consenual imposition of extraordinarily intrusive

treatments such as electroshock therapy and

psychosurgery upon additional procedural safeguards, the

same court later declined to upset a lower Minnesota

court holding that these additional procedures were not

required for the involuntary administration of

psychotropic drugs. In the Matter of the Alleged Mental

Ines of Paul Fussa, supra.

The Court recognized that while commitment is

not equivalent of an adjudication of mental

incompetency, it nevertheless reflects a judicial

determination that the individual lacks the capacity to

make his own decision regarding hospitalization. 239

N. W. 2d St. gu, n. 7. The court also recognized the

incongruity of allowing a patient who is thus

incapacitated to refuse the treatment which was the

justification for this commitment.

-39-

A potential conflict2/ also exists between the

First Circuit's opinion and the Third Circuit's awaited

opinion in Rennie v. Klein, Docket Nos. 79-3576, 2577.

(The trial court opinions in Rennie are reported at 462

F.Supp. 1131 (D. N. J. 1978) and 476 F.Supp. 1294 (D. N..

1979).2/ The Third Circuit recently decided on January

5, 1981, to rehear Rennie en banc.

2/ See Gulf States Steel Co. v. United States, 287

U.S. 32 (1932) for an example of this Court granting

certiorari where a potential conflict existed between a

district court opinion pending on appeal and the opinion of

the court of appeals reviewed by this Court.

3/ There are at least three other recently

decided cases discussing an involuntarily committed

mental patient's right to refuse treatment. Davis v.

Hubb 49 U.S. L. W. 2215 (U.S. D. C. N. Ohio, September

9 * In re K.K. B., 609 P. 2d 747 (Oklahoma 1980);

Goedecke v. State perm ent of Institutions, Colo.

e three cases found a

constitutional right to refuse treatment, they differed in

their opinions regarding the foundation of this "right", and

Davis differed as to the required procedures

accompanying this "right". While probably none of these

cases act as a conflicting opinion justifying the granting

of certiorari, see U.S. Supreme Court Rule 17(a), the

number of other courts deciding the issue of a "right to

refuse treatment" acts as evidence of the importance of

the issues raised. See Calhoun v. Harvey, 379 U.S. 134,

137 (1964); Curtis v. Loe 5 . „ 191, n.2 (1974);

Beal v. Doe, 0 » 443, n. 7 (1977).

-40-

II. THE FEDERALISM ISSUES IN THIS CASE

ARE IMPORTANT AND SHOULD BE SETTLED

BY THIS COURT.

The First Circuit found that the record supported

the trial court's findings that (1) defendants had acted in

subjective good faith, (2) defendants had not violated

clearly established constitutional rights, and (3)

defendants had not acted negligently. App., pp. 32a-33a,

37a. Yet, despite these findings of no deliberately

wrongful or even negligent behavior, the First Circuit has

not left to the defendants the power to promulgate their

oven regulations consistent with the substantive law as

declared in the First Circuit opinion.

The First Circuit noted only two constitutional

procedural requirements for forcibly medicating patients;

they described these constitutional requirements as

minimum requirements of due oro. Nevertheless,

4/ The First Circuit established the following

minimum fequirements of due process: d) the

determination that medication is necessary must be made

by a qualified physician as to each individual patient to be

medicated, App., b. l4a; (2) there might be some

mechanism for periodic review by non-treating physicians

of the full treatment history of patients treated under the

parens patriae power to ensure that the treating

physicians are in fact attempting to make treatment

decisions as the patients themselves would were they

competent. App. p. 29a.

-41-

the First Circuit remanded the case to the trial court

with instructions "to be creative in designing procedural

mechanisms" which apparently will exceed these minimum

constitutional requirements. App. pp. l4a-l5a. In light of

the remand to design procedures, the state officials in

this case find themselves faced with ongoing federal

supervision of their actions and the need to go to court to

make any changes in the procedures ordered by the trial

court. This loss of flexibility has been imposed on the

state officials despite the lack of a finding of any active

wrongdoing on their part in the past. See, Parham v. J.R.,

442 U.S. 584, 615-616 (1979) where this Court noted the

relevance of defendants having acted in good faith in

declaring that no new procedures need be ordered by the

Court.

As this Court noted in Rizzo v. Goode, 423 U.S. 362,

378 (1976), the considerations of federalism dictating

against federal courts fashioning prophylactic procedures

for state agencies raise important issues. In Rizzo, this

Court declared:

T]he nature of the violation determines the

scope of the rem edy

ss

Where, as here, the exercise of authority by

state officials is attacked, federal courts must

-42-

be constantly mindful of the 'special delicacy

of the adjustment to be preserved between

federal equitable power and state

administration of its own laws.'

8 *

When a plaintiff seeks to enjoin the activity of

a government agency, even within a unitary

court system, his case must contend with 'the

well-established rule that the Government has

traditionally been granted the widest latitude

in the dispat ch of its own internal affairs,

ses

When the frame of reference moves from a

unitary court system, governed by the

principles just stated, to a system of federal

courts representing the Nation, subsisting side

by side with 50 state judicial, legislative, and

executive branches, appropriate consideration

must be given to principles of federalism in

determining the availability and scope of

equitable relief.

423 U.S. at 378, 379 (Citations omitted).

The First Circuit, in remanding this case, has

ignored the dictates of Rizzo. Significantly, in Rizzo,

-43-

this Court found the principles of federalism to be

violated despite the fact that the district court's remedy

was one that the police department defendants could live

with’ 423 U.S. at 381 (Blackmun, J., dissenting).

The First Circuit's remand equally disregards the

mandate of this Court set forth in Bell v. Wolfish, 441 U.S.

520, 561 (1979):

The deplorable conditions and draconian

restrictions of some of our Nation's prisons are

too well known to require recounting here, and

the federal courts rightly have condemned

these sordid aspects of our prison systems. But

5/ Thus, there is no need in this case to wait to

grant certiorari until it is determined whether petitioners

can live with the trial court's procedures. At issue is the

correctness of the remand itself, and whether the

petitioners are to lose their authority to create their own

procedures. Moreover, the "right to refuse" treatment

issue is ripe for review. The trial of the issue is complete

and no additional evidence will be presented on remand.

Moreover, a determination of whether a patient has a

"right to refuse treatment" is fundamental to a

determination of whether there are any procedures

constitutionally required. Finally, petitioners, having

lived under the temporary restraining order and

permanent injunction in this case for close to six years

should not be required to wait any longer for a final

resolution of this issue.

44

many of these same courts have, in the name

of the Constitution, become increasingly

enmeshed in the minutiae of prison

operations. Judges, after all, are human.

They, no less than others in our society, have a

natural tendency to believe that their

individual solutions to often intractable

problems are better and more workable than

those of the persons who are actually charged

with and trained in the running of the

particular institution under examination. But

under the Constitution, the first question to be

answered is not whose plan is best, but in what

branch of the Government is lodged the

authority to initially devise the plan.

Finally, the First Circuit should have, but did not,

follow the lead of this Court in Parham v. J.R., 442 U.S.

584, 607-608 (1979), where this Court refused "to outline

with specificity" what medical investigative techniques

must be followed given the already established existence

of traditional medical investigatory techniques.

-45-

CONCLUSION

For the reasons stated in this Petition, a writ of

certiorari should issue to review the judgment and opinion

of the First Circuit.

Respectfully submitted,

FRANCIS X. BELLOTTI

ATTORNEY GENERAL

ros

Administrative and Legal

Counsel to the Massachusetts

Attorney General

One Ashburton Place

Room 2001

Boston, MA 02108

617-727-4538

Date: February 20, 1981