Appendix — Mills v. Rogers

80-1417

Office-Supreme Court, U.S.

x» EILED

No. ree 23 1981

ALEXANDER L STzvas,

OCTOBER TERM, 1980 CLERK

SUPREME COURT OF THE UNITED STATES

ROBERT OKIN, MICHAEL GILL AND

WILLIAM MALAMUD,

Petitioners,

v.

RU BIE ROGERS, ABLE BOLDEN, BETTY BYBEL,

JAMES COLLERAN, DONNA HUNT, WILLIE WADSWORTH,

AND HAROLD WARNER,

Respondents.

APPENDIX TO 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

la

Appendix A

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 79-1648

No. 79-1649 i

RUBIE ROGERS, et al.,

Plaintiffs, Appellees and Cross-Appellants,

v.

ROBERT OKIN, M. D., et al.,

Defendants, Appellants and Cross- Appellees.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

478 F.Supp. 1342

Hon. Joseph L. Tauro, U.S. District Judge]

Before COFFIN, Chief Judge,

CAMPBELL, Circuit Judge,

DAVIS, Judge, U.S. Court of Claims.*

Richard C. Cole, with whom Robert Burdick, Clyde

Bergstresser, Shubow, Stahlin & Bergstresser and Michael

Haroz, were on brief, for Ruby Rogers, et al.

*Sitting by designation.

2a

Stephen Schultz, Administrative and Legal Counsel, with

whom, Francis X. Bellotti, Attorney General, was on

brief, for Robert Okin, et al.

Joel I. Klein, with whom Ellen 8. Silberman and Rogovin,

Stern & Huge were on brief, for American Psychiatric

Association, amicus curiae.

Christopher A. Hansen, with whom Robert M. Levy and

Robert Plotkin, were on brief, for The American

Orthopsychiatriec Association, The Mental Health

Association, the Civil Liberties Union of Massachusetts,

and The Mental Patients“ Liberation Front, amici curiae.

Thomas F. O'Hare, and Susan F. Kendall, on brief, for

The Mental Health Legal Advisors Committee, amicus

curiae.

Patrick R. Carroll and William T. McGrail on brief, for

The Massachusetts Hospital Association, Inc., amicus

curiae.

November 25, 1980

Coffin, Chief Judge. These appeals are the latest

stage in a lengthy and complex civil rights action

conerning the practices at Massachusetts state mental

health facilities. Plaintiffs are voluntary and involuntary

psychiatric patients at Massachusetts state mental health

facilities. Defendants are the state Commissioner of

Mental Health and various hospital officials and

physicians responsible for plaintiffs' care. The full

factual background and procedural history are set forth in

the published opinion of the district court, Rogers v. Okin,

478 P. Supp. 1342 (D. Mass. 1979), and will not be repeated

here. Two chief issues are raised in these cross-appeals

from the district court judgment: I. Under what

circumstances may state officials forcibly administer

antipsychotic drugs to mental health patients without

violating the Fourteenth Ameodment? I. Did the district

court correctly find that an award of monetary damages

to plaintiffs under 42 U.S.C. $1983 or various state causes

of action was not warranted? On the latter issue, we

fully concur with the judgment of the district court. With

regard to the former, we are in substantial agreement

with portions of the district vourt's reasoning, but find

that several important aspects of the court's ruling

require modification.

4a

I,

A. Nature of the Individual Right

We begin our analysis with what seems to us to be

an intuitively obvious proposition; a person has a

constitutionally protected interest in being left free by

the state to decide for himself whether to submit to the

serious and potentially harmful medical treatment that is

represented by the administration of antipsychotic

The precise textual source in the Constitution

of the protection of this interest is unclear, and the

We use the term "antipsychotic drugs" to refer to

medications such as Thorazine, Mellaril, Prolixis and

Haldol that are used in treating psychoses, particularly

schizophrenia. The district court used this term

interchangeably with the apparently broader term

"psychotropic drugs", which may include antidepressants

and lithium, and which as far as the record shows do not

have as substantial a potential for serious side effects as

do the anti-psychotics. Both the parties and the district

court have throughout this litigation focused exclusively

on the antipsychotics, see, e.g., 478 F.Supp. at 1359-60.

Accordingly, we interpret the district court's use of the

term "psychotropic drugs" to mean antipsychotic drugs.

The potentially harmful side effects of these drugs are set

forth in detail in the record, and described in part in the

district court opinion. Foremost among them is tardive

dyskinesia, a painful, disfiguring, and sometimes disabling

neurological affliction which all parties in this case

concede might be caused by the use of anti-psychotic

drugs.

5a

authorities directly supportive of the proposition itself

are surprisingly few. Nevertheless, we are convinced that

the proposition is correct and that a source in the Due

Process Clause of the Fourteenth Amendment for the

protection of this interest exists, most likely as part of

the penumbral right to privacy, bodily integrity, or

personal security. See, Parham v. J.R., 442 U.S. 584, 626

(1979) (Brennan, J., dissenting on other grounds); Rennie

v. Klein, 462 F.Supp. 1131, 1144-45 (D N. J. 1978) (on motion

for preliminary injunction); In Re KKB, No. 31, 46 (S.Ct.

Okla. Jan. 15, 1980); Superintendent of Belchertown x:

Saikewicz, 373 Mass. 728 (1977); cf. Ingraham v. Wright,

430 U.S. 651, 673 (1977) ("Among the historic liberties

[protected by the Due Process Clause] was a right to be

free from...unjustified intrusions on personal security.");

Breithaupt v. Abram, 352 U.S. 432, 439 (1957) ("right of an

individual that his person be held inviolable"). See,

generally, Developments in the Law—Civil Commitment

of the Mentally Ill, 87 Harv. L. Rev. 1190, 1194-96 (1974)

(hereinafter cited as Developments] 2/

2/ The district court found that First Amendment rights

were also implicated. 478 F. Supp. at 1366-67. See, also,

Scott v. Plante, 532 F.2d 939, 946 (3d Cir. 1976); Winters

14970. 2d 65 (2d Cir.) cert. denied, 404 U.S. 985

. We find it unnecessary the present case to

decide if this finding is correct.

6a

None of the parties or amici in this suit contest the

correctness of this general proposition. With regard to

the treatment of the mentally ill in state run institutions,

however, defendants point to several state interests that,

they claim, ‘override the individual's protected interest

and justify the forced administration of drugs.

Additionally, defendants contend that within this context,

the interests of the individuals to whom the state wishes

to administer drugs are fundamentally different from

those of individuals who are not mentally ill, and are not

in fact inconsistent with the interests of the state.

Plaintiffs, on the other hand, while conceding that the

interests of the individual are not absolute and can be

overridden in certain circumstances, argue that the mere

fact that an individual suffers from mental illness and

resides in a mental health facility does not constitute

such a circumstance. In order to resolve this dispute

between the parties, we first examine the various state

interests involved.

B. State Interests

As we have indicated, neither defendants nor their

amici argue that the state could forcibly administer

antipsychotic drugs to a randomly selected "normal"

individual. Unfortunately, the plaintiffs in this suit are far

7a

from "normal". Instead, suffering from various mental

illnesses, they are in the words of the district court

"victims of fate shortchanged by life." 478 F. Supp. at

1369, As a result of their afflictions, they are in many

instances in desperate need of care and treatment, and, in

some cases, are dangerous to either themselves or others.

Because of their illnesses, some of these individuals are

unable to make any meaningful choice as to whether they

should accept treatment, including the administration of

drugs. Given these circumstances, the state asserts

primarily its police power and its parens partiae power as

justification for the forcible administration of

antipsychotic drugs to those individuals who are in state

run hospitals as a result of mental illness.

1. Police Power. The parties agree that the

state has a legitimate interest in protecting persons from

physical harm at the hands of the mentally ill. They also

agree that this interest can justify the forcible

administration of drugs to a mentally ill person whether

or not that person has been adjudicated incompetent to

maxe his own treatment decisions. The district court

accordingly held that "a committed mental patient may

be forcibly medicated in an emergency situation in which

a failure to do so would result in a substantial likelihood of

8a

physical harm to that patient, other patients, or to staff

members of the institution." 478 F.Supp. at 1368.7

Plaintiffs have no complaint with this ruling. Defendants,

however, have two basic complaints, which they raise on

this appeal. First, defendants contend that the district

court's definition of emergency is too narrow and should

include situations in which "a patient requires the prompt

initiation of medication to prevent further suffering by

that patient or the rapid worsening of that person's

clinical state. "Since the state interests sought to be

furthered by this proffered definition are in parens

patriae interests - (the desire to treat the patient

effectively) — (we shall address that part of defendants'

argument in Part I.B.2 of this opinion, infra.

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. Defendants argue that some

mentally ill patients have an identifiable capacity for

spontaneous acts of violence but that it is not always

3/ The exact meaning of the term "substantial likelihood"

B unclear on its face. Elsewhere in its opinion, however,

the district court suggests that in using this term it means

"more likely than not", 478 F.Supp. at 1364. The parties

have apparently so construed the term, and so shall we.

9a

possible to determine beforehand whether a specific

patient is likely to commit such acts. This problem of

prediction is increased, defendants claim, by the prospect

that doctors will be second-guessed in section 1983 suits

for damages. In sum, defendants assert that the overall

effect of following the district court's standard is to

increase the incidence of violent acts that otherwise

would not occur had a less restrictive standard been used.

The district court rejected this complaint, finding

that the actual experience of operating under the

standard during the period covered by a temporary

. restraining order showed defendants' "gloomy forecast" to

be "more dramatic than factual". To a certain extent it is

clear that throughout this litigation defendants and their

supporting amici have erroneously attributed acts of

violence to the strictness of the court's standard.

Nevertheless, 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.

For example, at one point during the trial,

defendant Gill, director of the Austin Unit of the state

hospital, testified that a particular patient on one

occasion displayed indications of a possible proclivity

10a

towards violence. Defendant, who was aware of the

patient's previous favorable medical reaction to the

administration of drugs, testified that he would have

forcibly medicated the patient as a precaution had he

been free to do so. He stated, however, that the

indications were not sufficiently clear to enable him to

predict that the patient would be likely to commit

violence without the medication. He therefore did not

medicate the patient, who subsequently seriously injured a

staff member during a spontaneous violent outburst. The

district court dismissed this incident simply by finding

that the defendant doctor had erred in his medical

prognosis: he should have realized that violence was

likely to occur.

This rather typical dialogue reveals, we think, the

inaptness in this context of a clear-cut unitary standard

of quantitative likelihood that violence would occur if no

medication is administered. In the first place, a unitary

standard assumes that there is only one kind of probability

to be tested: e.g., a likelihood that an individual has

committed or is committing a crime, a likelihood that

certain contraband will be found on described premises, or

a likelihood that A is right and B is wrong. Here,

however, there are two sets of interests, each capable

lla

of varying from case to case. On the institutional side,

we deal with an institution to which many individuals are

involuntarily committed because of a demonstrated

proclivity for committing acts of violence outside the

hospital community, see, Mass. Gen. Laws Ann. ch. 123,

887, 8 & l, a proclivity that the record shows often carries

over after commitment. The volatility of a large

concentration of such individuals adds substance and

immediacy to the state's concern in preventing violence.

This concern takes on an added dimension when we

consider that patients themselves are the likely victims of

any violence. These mental patients are persons who, as

we have noted, have "a right, under the Fourteenth

Amendment, to be secure in [their] life and person while

confined under state authority.“ Harper v. Cserr, 544

F.2d 021, 123 (Ist Cir. 1976), quoting Spence v. Staras,

507 F.2d 554, 557 (7th Cir. 1974). On the individual's

side, we deal with the concededly substantial right of

competent patients to be free from the forcible

administration of antipsychotics, the violation of which

right may not only occasion temporary distress but

possibly aftereffects as well.

The professional judgment-call required in balancing

these varying interests and determining whether a patient

should be subjected to forcible administering of

12a

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. Thus, for example, if the violence feared is

potentially life-threatening, and the patient's prior

experience with antipsychotics favorable, it would be

patently unreasonable to require that defendants

determine that the probability of the feared violence

occurring is greater than fifty percent before they can

act. By contrast, if the patient has experienced severe

adverse side-effects from antipsychotics, it would be only

reasonable to expect defendants to explore less harmful

alternatives much more vigorously than in the former

case.

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.

While lawyers and judges may assure themselves that such

a standard allows adequate scope for discretion, the

important fact is that trained psychiatrists, who possess

expert qualifications and experience that the judge lacks,

find that in many situations they cannot make

13a

predictions that, to their science oriented minds, meet a

quantitative level of probability. Instead of

second-guessing defendants, the court should have taken

as true their asserted difficulties in applying the court's

general formulation (at least in the absence of a finding

that defendants were lying), and fashioned a ruling that

took these difficulties into consideration. INI] either

judges nor administrative hearing officers are better

qualified than psychiatrists to render psychiatric

judgments." Parham v. Z:. R., 442 U.S. 584, 607 (1979),

quoting In re Rogers S., 19 Cal. 921, 942 (1977) (Clark J.,

dissenting), Cf. Bell v. Wolfish, 441 U.S. 520, 544 (1979)

(courts should not "second-guess administrators on

matters on which they are better informed.").

Moreover, the array of relevant factors bearing on a

quantitative judgment in this institutional setting almost

defies prediction or reviewability. For example, we

suspect that the likelihood of a violence-prone patient's

losing control of himself may often depend on the

provocation of others. The difficulty of factoring such

possibilities into an individual determination makes a

preponderance prediction fall short of being practical, not

to mention short of being constitutionally mandated.

In so holding, we do not imply that the Constitution

14a

places no limits on the discretion of the defendants. The

state's purpose in administering drugs forcibly must be to

further its police power interests, I. e,, the decision must

be the result of a determination that the need to prevent

violence in a particular situation outweighs the possibility

of harm to the medicated individual. Thus, medication

cannot be forcibly administered solely for treatment

purposes absent a finding of incompetency. See Part I. B. 2

of this opinion, infra. Additionally, reasonable

alternatives to the administration of antipsychotics must

be ruled out. Otherwise, the administration of the drugs

would not be necessary to accomplish the state's

objective. Indeed, it may be possible that in most

situations less restrictive means will be available. On

remand, the district court should explore this possibility.

Finally, given the interests involved, the Fourteenth

Amendment requires the imposition of procedures

whereby the necessary determinations can be made with

due process. Thus, for example, it would seem that at a

minimum the determination that medication is necessary

must be made by a qualified physician as to each

individual patient to be medicated. What additional

procedures might be warranted we leave to the district

court on remand, noting only that our admonitions

15a

concerning the creation of general, substantive standards

for weighing the competing interests should not be

construed as limiting the ability of the court to be

creative in designing procedural mechanisms whereby it

can be reasonably sure that the interests of the patients

are taken into consideration.

In sum, we hold that the district court should not

attempt to fashion a single "more-likely-than-not"

standard as a substitute for an individualized balancing of

the varying interests of particular patients in refusing

antipsychotic medication against the equally varying

interests of patients and the state — in preventing

violence. Because we recognize the legitimacy of both of

these interests, we conclude that neither should be

allowed necessarily to override the other in a blanket

fashion. Instead, the court should leave this difficult,

necessarily ad hoc balancing to state physicians and limit

its own role to designing procedures for ensuring that the

patients! interests in refusing antipsychotics are taken

into consideration and that antipsychotics are not forcibly

administered absent a finding by a qualified physician that

those interests are outweighed in a particular situation

and less restrictive alternatives are unavailable.

l6a

2. Parens Patriae Powers. The concept of parens

patriae, which developed with reference to the power of

the sovereign to act as "the general guardian of all

infants, idiots, and lunatics", Hawaii v. Standard Oil Co.,

405 U.S. 251, 257 (1972), quoting 3 W. Blackstone,

Commentaries *47, is clearly applicable to the facts of

this case. There is no doubt that "[t]he state has a

legitimate interest under its parens patriae powers in

providing care to its citizens who are unable to care for

themselves...." Addington v. Texas, 441 U.S. 418, 426

(1979). The use of these powers to go beyond the mere

protection of the mentally ill from harm to the forcible

administration of treatment thought curative is regarded

as having its origins in the Massachusetts case of In re

Oates, 8 Law Rep. 122 (Mass. 1845), see Developments,

supra at 1209. Such use of the powers is implicit in their

very nature.

"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

17a

very justification for the state's action by

refusing such treatments." Id. at 1344.

In Oakes the treatment administered consisted

largely of rehabilitative incarceration, which

unfortunately was largely ineffective. Today, however,

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.

Given such a possibility, and confronted with the often

severe suffering of individuals afflicted with mental

illness, the state today finds its interest in being able to

offer meaningful assistance to the individual even more

substantial than it was in previous times. However, for

the state to invoke this interest as a justification for the

administration of treatment that could represent

substantial intrusions upon the individual, the individual

himself must be incapable of making a competent decision

concerning treatment on his own. Otherwise, the very

justification for the state's purported exercise of its

parens patriae power — its citizen's inability to care for

himself, see, Addington v. Texas, supra, 441 U.S. at 426 —

would be missing. Therefore, the sine qua non for the

state's use of its parens patriae power as justification for

the forceful administration of mind-affecting drugs

18a

is a determination that the individual to whom the drugs

are to be administered lacks the capacity to decide for

himself whether he should take the drugs. See, Winters v.

Miller, 446 F.2d 65, 71 (2d Cir.), cert. denied, 404 U.S. 985

(1971).

For the most part, the parties do not contest this

conclusion. Instead, their dispute concerns whether or not

such a determination has in fact been properly made with

respect to the plaintiffs. Defendants assert that the

judicial commitment proceedings conducted under

Massachusetts law, Mass. Gen. Laws Ann. ch. 123 (1979),

constitute the determination of incapacity necessary for

the state to provide treatment over the objections of the

patient. "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 nospitalla ed. To

demonstrate why the district court was correct in

rejecting this assertion, we turn our focus to the

Massachusetts commitment scheme.

4/ Amicus American Psychiatric Association similarly

argues that "[t] he fatal flaw in the district court's

(footnote continued)

19a

The predicate to the prolonged involuntary

commitment of an individual under Massachusetts law is a

judicial determination that the individual is mentally ill

and that failure to hospitalize him would create a

"likelihood of serious harm". Id. 887, 8. Within the

bounds of certain administrative requirements, an

individual may be committed without his consent for

shorter periods of up to ten days upon a determination by

one or more physicians that "failure to hospitalize such

person would create a likelihood of serious harm by reason

of mental illness." In either situation, "likelihood of

serious harm" is defined as:

n) a substantial risk of physical harm to

the person himself as manifested by evidence

or 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

4/ (footnote continued)

analysis is its failure to explain why the decision to

commit a person against his will is not a sufficient

constitutional predicate to justify the provision of that

treatment for which the individual was committed to

receive."

20a

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 to

affected that he is unable to protect himself

in the community and that reasonable

provision of his protection is not available in

the community." Id. Sl.

When we scrutinize this statutory scheme in search

of a judicial determination of incapacity, we find no

direct inference of such. We can conceive of a logical

step that could be taken — inferring from an adjudication

that an individual was incompetent to make a decision

concerning his commitment that he was incompetent to

make decisions concerning his treatment. But even on

this basis we see such a nexus only Were a finding of

"likelihood of serious harm" concerning an individual is

based on the third definition of that term in section | of

the statute. That is, an adjudication that an individual's

judgment is so affected that he cannot protect himself in

the community may well justify the conclusion that he has

also been adjudged incapable of making his own decision

concerning his commitment and — to complete the chain

of inference — treatment. In such a situation the

commitment adjudication may well imply the

21a

incapacity to make treatment decisions that justifies the

state's assumption of its parens patriae role regarding

treatment. But adjudications under the first two

definitions of section 1 provide no adjudication of

judgmental capacity; commitment is based on a

determination of risk of physical harm to the individual or

to others.

We see no systematic means whereby we might

identify those individuals whose commitment is based

upon the third statutory definition of "likelihood of

serious harm", and appellants point to no such means. It

is therefore possible that many or all involuntary patients

might have been committed pursuant to the first or

second definitions. In short, under the statutory scheme

any given individual might have been committed despite

the fact that he competently believed that treatment was

not in his best interests.

Defendants contest the correctness of this

conclusion by pointing to the fact that the statutory

scheme does require a finding that the committed

individual suffers from mental illness. This finding,

defendants argue, is a sufficient predicate to state action

based on its parens patriae power. Nothing in the

statutory scheme, however, suggests that a finding of

mental illness is equivalent to a finding that the individual

22a

is incapable of deciding for himself whether commitment

and treatment are in his en best interest. Indeed, as the

district court noted, the fact that Massachusetts law

provides for a separate proceeding for determinations of

legal incompetency, Mass. Gen. Laws Ann. ch. 123, § 25,

strongly implies that the commitment proceeding itself is

not intended to be a determination that the individual

lacks the capacity to make his own treatment decisions.

Cf. Boyd v. Bd. of Registrars of Voters of Belchertown,

368 Mass. 631, 635-36 (1975) profound“ distinction

between commitment and determination of

incompetency). This implication is explicitly confirmed in

another section of the statute that recognizes the ability

and right of a committed patient to refuse

electroconvulsion treatment and lobotomies. Mass. Gen.

Laws Ann. ch. 123, § 23. Finally, as a factual matter, the

district court found, 478 F. Supp. at 1364, and defendants

concede, that not all patients institutionalized for mental

illness are incapable of making their own treatment

decisions.2/

5/ It is also worth noting that appellants issue patients an

Admission packet" informing them that they may make

their own treatment decisions.

23a

The foregoing analysis is not intended to suggest

that the Massachusetts commitment scheme is

unconstitutional. To the contrary, in many respects the

Massachusetts scheme goes well beyond the minimum

requirem ents m anda ted by the Fourteenth

Amendment. The point of our analysis is instead to

demonstrate that the commitment decision itself is an

inadequate predicate to the forcible administration of

drugs to an individual where the purported justification

for that action is the state's parens patriae power.

In so ruling, we recognize that there is a need for

some procedure whereby the state can provide needed

treatment to an objecting individual who lacks the

capacity to make meaningful treatment decisions on his

own. The district court, pointing to the powers and

proceedings of the Massachusetts Probate Courts, Mass.

Gen. Laws Ann. ch. 123, § 25; Superintendent of

Belchertown v. Saikewicz, supra, 373 Mass. at 745-55,

found that such a procedure exists in Massachusetts and

6/ For example, the federal Constitution does not

mandate a reasonable doubt standard for commitment

proceedings, Add v. Te 441 U.S. 418 (1979), yet

Massachusetts employs such a standard. 5 perintendent

1 ass. .

of Worcester State Hospital v. Hagburg,

* . U

24a

that it is constitutionally sound. Plaintiffs concurred in

this judgment. Defendants, however, contend that the

probate proceedings and the use of a guardian are too

cumbersome to serve as a necessary predicate to forcible

medication for treatment purposes. In so arguing,

defendants for the most part misconstrue the import of

the district court's reasoning. The court did not hold that

fullblown probate proceedings are constitutionally

required. Rather, the court held that some determination

of incompetency must be made, and found that probate

proceedings under section 25 of chapter 123 sufficed. The

court specifically advised defendants to aim their

complaint concerning the efficacy of these proceedings to

the state legislature.

We do agree with defendants, however, that there

are two aspects of the district court's ruling that require

some modification. First, the district court held that

absent an emergency“ defendants can never forcibly

medicate an individual without an adjudication of

incompetency and approval by the appointed guardian.

7/ The district court did find, with ample justifications,

that defendants’ assertions of impracticality were a bit

overblown, noting that "there is statutory authority for

— appointment [of guardians] ..." 478 F.Supp. at

N. *

25a

The court defined an emergency as "circumstances in

which a failure to [forcibly medicate] would bring about a

substantial likelihood of physical harm to the patient or

others." In so restricting the definition to instances in

which immediate action is required to prevent physical

harm the district court rejected defendants' claim that an

emergency should also include situations in which the

immediate administration of drugs is required to prevent

physical harm the district court rejected defendants’

claim that an emergency should also include situations in

which the immediate administration of drugs is reasooably

believed to be necessary to prevent further deterioration

in the patient's mental health.

The district court did not proffer any explanation

for requiring an actual adjudication of incompetency in

such circumstances. While judicial determinations are

certainly preferable in general, room must be left for

responsible state officials to respond to exigencies that

render totally impractical recourse to traditional forms of

judicial process.

"The judicial model of fact finding for all

constitutionally protected interests. regardless

of their nature, can turn rational

decisionmaking into an unmanageable

enterprise." Parham v. J.R., 442 U.S. 584. 608

n. 16 (1979).

26a

Moreover, in the particular situation presented here, it

cannot be said that the interests of the patient himself

would be furthered by requiring responsible physicians to

stand by and watch him slip into possibly chronic illness

while awaiting an adjudication of incompetency. Cf. Coll

v. Hyland, 411 F. Supp. 905, 910 (D. N. J. 1976) (three judge

court, per curiam) ("When the choice is between loss of

life or health and a loss of liberty for a brief period of

time, the preferable alternative is apparent"). Instead,

the interests of the individual in such a situation coincide

with those of the state and mandate decisive, immediate

action. We therefore vacate the district court's limited

definition of the emergency circumstances in which

adjudications are not required and remand the case for

consideration of alternative means for making

incompetency determinations in situations where any

delay could result in significant deterioration of the

patient's mental health.

Second, it is possible to read the district court's

opinion as implying that once a determination of

incompetency has been made, a traditional, individual

guardian must make all treatment decisions involving the

use of antipsychotic drugs. To the extent that the district

court's opinion might be so read, we reject that part of its

holding.

27a

The district court focused extensively on the

harmful side effects that the various medications can

produce. Its findings concerning these effects are

supported by the record. However, the record also shows

that in many situations, despite the risks of harmful side

effects, the administration of drugs to an individual is

clearly in his best interests because of the beneficial

effects that the drugs can have, including the

amelioration of the patient's illness. In such situations,

the failure to medicate an incompetent patient could have

side effects — e.g., the unnecessary and possibly

irreversible continuation of his illness — far more

harmful, and probable, than any that might result from

the drugs themselves.

Thus, any treatment decision, including the decision

not to treat, brings with it the potential for serious harm

to the patient. Accordingly, if we were to adopt what is

arguably the district court's reasoning concerning

guardians, we would be led to the conclusion that

appellants must consult a guardian whenever they decide

not to administer drugs to an incompetent patlent.

8/ At least in the case of individuals declared

Incompetent and denied the right of acting or choosing on

their own, we see no relevant distinction between state

action and inaction.

28a

Such a requirement would, we think, be impractical and

largely incapable of enforcement.

Of course the mere fact that it would be

impractical to have a guardian make all significant

treatment decisions for an incompetent patient does not

itself indicate that it is undesirable to have a guardian

make those decisions that can be made practically. Our

concern, however, is that the requirement of

individualized guardian review on only some aspects of

significant treatment decisions might in the long run

create a tendency for patients to receive other

treatment, i.e., no treatment, in situations where the best

interests of the patient would indicate otherwise.’

While we cannot be certain that such a result would

occur, we do think that the nature of the problem

presented is such that it is unwise to declare that the

Constitution requires that state officials must receive

guardian approval for individual treatment decisions

simply because the administration of drugs is

recomm ended.

9/ This result would occur to the extent that any

Physicians were deterred, either consciously or

unconsciously, from recommending drug treatment due to

the need to seek the approval of a guardian. Physicians

acting in good faith could nevertheless be so deterred by

the need to limit the amount of time spent on

admimistrative matters.

29a

In so holding, we do not imply that the Constitution

places no limits whatsoever on the manner in which the

state may decide how to treat incompetent patients,

Following a determination of incompetency, state actions

based on parens patriae interests must be taken with the

aim of making treatment decisions as the individual

himself would were he competent to do so. Cf.

Superintendent of Belchertown x. Saikewicz, supra, 373

Mass. at 745-55 ("substituted judgment" standard).

Furthermore, in order to ensure compliance with this

requirement, some minimum procedural requirements

would seem to be necessary. Thus, for example, at a

minimum there might be some mechanism for periodic

review by non-treating physicians of the full treatment

history of patients to ensure that the treating physicians

are in fact attempting to make treatment decisions as the

patients themselves would were they competent.

Appellants claim that they employ such procedures,

and ask us to declare them sufficient. We hesitate,

however to make such a finding. Despite our intensive

review of this case, our familiarity with the factual

details of the functioning of the hospitals and the needs of

the patients does not approach that of the district court.

Moreover, neither the district court nor the parties have

30a

had the opportuuity to evaluate the present procedures in

terms of the criteria we set forth today. For the purposes

of this appeal, we therefore rest on our holding that,

absent an emergency, a judicial determination of

incapacity to make treatment decisions must be made

before the state may rely on its parens patriae powers to

forcibly medicate a patient, but, as a constitutional

matter, the state is not required to seek individualized

guardian approval for decisions to treat incompetent

patients with antipsychotic drugs. What procedural

safeguards might be required, short of individualized

guardian review, we leave for the present to the district

court.

C. Voluntary Patients

One point that our analysis unaddressed is whether

patients who voluntarily enter a state mental health

facility have a right to refuse antipsychotic medication.

The district court held that "the voluntary patient has the

same right to refuse treatment in a non-emergency as

does the involuntary patient." 478 F. Supp. at 1368. The

court apparently rejected defendants' argument that

voluntary patients can be forced to choose between

leaving the hospital and accepting prescribed treatment.

3la

In so holding, the district court in effect found that

Massachusetts citizens have a constitutional right upon

voluntary admittance to state facilities to dictate to the

hospital staff the treatment that they are given. The

district court cited no authority for this finding, and we

know of none. Massachusetts law provides for the

voluntary admission of mental health patients who are "in

need of care and treatment...providing the admitting

facility is suitable for such care and treatment." Mass.

Gen. Laws Ann. ch. 123, Slo(a). The statute does not

guarantee voluntary patients the treatment of their

choice. Instead, it offers a treatment regimen that state

doctors and staff determine is best, and if the patient

thinks otherwise, he can leave. l/ We can find nothing

even arguably unconstitutional in such a statutory scheme.

I.

The district court found that plaintiffs Wadsworth,

Rogers, Hunt, Bybel, and Colleran were all forcibly

medicated prior to issuance of the temporary restraining

order in 1975 in situations that did not comply with the

district court's definition of an "emergency". The court

10/ To the extent that patients might be prevented from

Teaving, they become involuntary patients whose rights

are as set forth in the preceding parts of this opinion.

32a

also found that plaintiffs Wadsworth, Warner, Bolden,

Hunt, and Bybel were placed in seclusion during the same

time period in situations that did not constitute

"emergencies" / The court further held that none of

these instances warranted an award of damages.

Plaintiffs appeal from this last holding, contending that

damages were warranted under 42 U.S.C. § 1983 and

various state tort laws.

A. Section 1983

I. Forcible Medication, Under Wood v. Strickland,

420 U.S. 308, 322 (1975), defendants can be held liable for

damages under section 1983 only if they "acted with such

an impermissible motivation or with such disregard

of...clearly established constitutional rights that [their

actions] cannot reasonably be characterized as being in

good faith." Ig. The district court's finding that

defendants acted in subjective good faith, i.e, did not

have "an impermissible motivation" is certainly supported

by the record. See, 478 F.Supp. at 1382. Indeed, one of

the few points clearly established by the record is that

defendants believed that they were acting legally and in

the best interests of plaintiffs.

The court further found that plaintiff Hunt was

secluded largely for therapeutic reasons.

33a

The court's finding that defendants acted with

objective good faith, i.e., not in violation of "clearly

established constitutional rights", was also correct.

Whatever might be said concerning the extent of

plaintiffs’ right to refuse medication within the

institutional context, that right was certainly not "clearly

established" before 1975. See, also 478 F. Supp. at 1383

n. 58.

2. Seclusion. Defendants contend that plaintiffs'

constitutional rights were not violated by the seclusion

practices employed at the state hospitals, and thus argue

that the denial of damages under section 1983 was

certainly correct. Because we hold that the district court

did not err in finding that the defendants acted in good

faith, we need not decide whether plaintiffs'

constitutional rights were in fact violated 22/

As with the medication issue, there is nothing to

suggest that the district court clearly erred in finding

that the defendants acted in subjective good faith. Nor

did the court err in finding objective good faith.

Plaintiffs cannot point to a single precedent holding the

civilly committed mental health patients have a

12/ Defendants have not appealed from the actual

Substantive ruling that the seclusion practices were

unconstitutional.

34a

substantive constitutional right not to be placed in

seclusion except in emergencies as defined by the district

court. They instead argue that the Massachusetts statute,

Mass. Gen. Laws Ann. ch. 123, §21, and the defendants'

own regulations clearly established that plaintiffs had a

state-created liberty interest in being free from

nonemergency seclusion. From this assertion, plaintiffs

reason that defendants should have known that they were

violating plaintiffs' constitutional right not to be deprived

of a state-created liberty interest without due process.

The Massachusetts statute, however, is not as clear

on its face as plaintiffs claim. The status states that

restraint "may be used only in cases of emergency such as

the occurrence of, or serious threat of, extreme violence,

personal injury, or attempted suicide...." Id. (emphasis

added). It is thus not clear that the definition of

emergency set forth is exclusive, nor is it clear that the

term "personal injury" encompasses only physical, as

opposed to mental, injury. More importantly, the statute

does not explicitly prohibit the use of seclusion for

therapeutic purposes, and therefore, given the difficulty

and complexity of the task defendants faced, it may not

have been unreasonable to regard this portion of the

statute as totally inapplicable to efforts aimed at

35a

curing patients. Finally, not every violation of a state

law or agency regulation constitutes a denial of a

constitutionally protected liberty or property interest,

see, Haines v. Kerner, 492 F.2d 937, n.8 (7th Cir. 1974),

Even if such an interest were clearly implicated in this

‘ease, it is far from clear that the procedures employed in

taking it awary were insufficient. Cf. Parham v. . R.,

442 U.S. 584, 608-609 (1979) (due process required, but

satisfied by decision by staff physician). In sum, we

simply cannot see how the district court erred in finding

that defendants did not Ignore] or disregard... settled,

indisputable law...." Wood v. Strickland, 420 U.S. 308,

321-22 (1975).

B. State Law Claims

Plaintiffs also attempted to recover damages under

various state intentional tort theories including false

imprisonment and assault and dattery. N The district

court rejected the application of these theories to the

B/ ‘Plaintiffs also raised intentional infliction of

emotional distress and invasion of privacy claims, both of

which they briefly mention in their brief on appeal. We

find that our reasoning regarding the false imprisonment

and assault and battery claims are equally applicable to

these two wanly proffered claims, and therefore affirm

the district court decision concerning them as well.

36a

facts of this case, finding that under Massachusetts law,

the actions of doctors in state mental health facilities are

to be judged by the principles of malpractice law as long

as the doctors act in good faith. The court found that

defendants acted in good faith and in accordance with

accepted medical practices. Plaintiffs contend that the

district court erred in so refusing to find defendants liable

under the intentional tort theories. We disagree.

In the case of Belger v, Arnot, 344 Mass. 679 (1972),

on which the district court relied, the Massachusetts

Supreme Judicial Court noted that the statutory scheme

providing for the commitment of mentally ill individuals

necessarily implied that hospital officials instrumental in

the procuring of a commitment are immune from actions

for false imprisonment if they acted in good faith and

nonnegligently, Id. at 684-85. See, also, Karjavaninen v.

Bushwell, 289 Mass. 419, 426 (1935), The very same

statutory scheme also provides for the treatment of

individuals who are committed. Mass. Gen. Laws Ann.

ch. 123, 82, and Massachusetts courts have indicated that

treatment can — and should — be administered forcibly in

certain situations. Nason _v. Superintendent of

Bridgewater State Hospital, 352 Mass. 604, 608 & 610 n. 7

(1968). It therefore seems apparent to us, as it

37a

did to the district court, that Massachusetts courts would

hold that defendants are immune from intentional tort

action arising from treatment decisions as long as they

acted in good faith and nonnegligently.

The district court's finding that defendants did not

act negligently is adequately supported by the record as

discussed in the court's opinion. Plaintiffs argue,

however, that the record does not support a finding of

good faith. Largely for the reasons set forth in the

section of this opinion concerning plaintiffs' federal

claims. Part H. A., supra, we reject this argument. With

regard to the particular application of state law, we

repeat only the point that it cannot be said that in acting

as they did defendants clearly exceeded their authority

under the Massachusetts statute. The statutory scheme

itself contains no indication that the forcible

administration of antipsychotics was prohibited. While it

does place limitations on the use of restraints, the

limitations are ambiguous, see Part H. A. 2. of this opinion.

supra, and it was not unreasonable for defendants to

regard them as inapplicable to actions taken for

therapeutic purposes. Cf. Nason v. Superintendent of

Bridgewater State Hospital, 353 Mass. 604, 614 (1968)

("appropriate treatment is to determined by competent

doctors in their best judgment within the limits of

permissible medical practice. . .).

38a

In conclusion, we find it worth noting that in an

important respect this case differs from the traditional,

adversary model of private litigation. Plaintiffs and

defendants, as well as the various amici, share in large

part the primary goal of assuring that adequate care and

treatment are provided to patients in state hospitals. As

is evident from this opinion, we have not accepted

absolutist positions advanced by either the parties or

amici, Accepting the premise that application of the

Constitution to the setting of a state mental health

institution requires the most sensitive combination of

deference to professional judgment and respect for

competent individual judgment as to personal autonomy,

we have demonstrated our conviction that such a balance

is most likely to be achieved through a variety of

procedural devices designed for their suitability to this

kind of institutional life rather than for their similarity to

judicial models. The record of exploration and evaluation

of such safeguards has yet to be made. And the making of

a record that will advance the interests of all concerned

demands that the parties, despite their differences in

views, work together on remand in a less absolutist and

more pragmatic way to develop constitutionally valid,

mutually acceptable, and workable solutions to the

difficult issues remaining in this case.

39a

u affirmed in reversed in and

vacated and remanded for further proceedings in

a with th nion.

40a

Appendix B

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 79-1648

RUBIE ROGERS, ETC.,

Plaintiffs, Appellees,

v.

ROBERT OK N, M. D., ETC., ET AL.,

Defendants, Appellants.

No. 79-1649

RUBIE ROGERS, ETC.,

Plaintiffs, Appellants,

v.

ROBERT OKIN, M. D., ETC., ET AL.,

Defendants, Appellees.

JUDGMENT

November 25, 1880

This cause came on to be heard on appeal from the

United States District Court for the District of

Massachusetts, and was argued by counsel.

Upon consideration whereof, It is now here ordered,

adjudged and decreed as follows: The judgment of the

district court is affirmed in part, reversed in part and

vacated and remanded in part for further proceedings in

accordance with the opinion filed this day.

4la

No costs at this time.

By the Court:

/s/ Dana H. Gallup

Clerk.

lee: Messrs. Cole, Schultz, Klein, Hansen, O'Hare and

Carroll.)

42a

Appendix C

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

C. A. 75-1610-T

RU BIE ROGERS, WILLIE WADSWORTH

DONNA HUNT, JAMES COLLERAN

HAROLD WARNER, ELIZABETH BYBEL,

ABLE BOLDEN, for themselves and on

behalf of all persons similarly situated,

Plaintiffs,

v.

ROBERT OK N, M. D., Commissioner

of the Department of Mental Health

of the Commonwealth of Massachusetts,

RICHARD KAHN, M.D., WILLIAM MALAMUD,

M. D., DAVID SELL, M. D., MICHAEL GILL,

M. D., ELLIOT SCHILDKROUT, M. D., SANFORD

PO MER ANT Z, M. D., JEAN TURNQUEST,

M. D., ALAN SIEGEL, EUGENE CACCIOLA

M.D., BRIAN MAZMANIAN, M.D., MICHAEL

OSBORNE, M.D, JOHN SZLYK, M.D.,

WILLIAM KANTAR, M.D., JOHN GOODMAN, M.D.,

Defendants.

43a

TABLE OF CONTENTS

I. Introduction

Il. Procedural Background

Il. The Parties

A. Plaintiffs

B. Defendants

IV. Boston State Hospital Facilities

and Personnel

A. The Austin Unit

B. The May Unit

V. Procedures for Commitment to the Boston

State Hospital

A. Conditional Voluntary Admission

B. Involuntary Temporary Hospitalization

for 10 Days

C. Involuntary Prolonged Civil

Commitment

D. Commitment of Alleged Alcoholics

E. Admission and Retention of the

Mentally Retarded

VI. Department of Mental Health

Regulations Concerning Treatment

At Boston State Hospital

Vil. Antipsychotic Drugs

VIII. The Injunction Claim Against

Medication Practices

A. The Competency of Mental Patients

to Refuse Treatment

B. Guardianship

C. The Right to Refuse Treatment

in an Emergency

D. The Right to Refuse Treatment

in a Non-Emergency

I. The Involuntary Patient's Right

to Refuse Treatment

a. The Involuntary Patient's

Right to Privacy

44a

b. The Involuntary Patient's

First Amendment Rights

2. The Commonwealth's Interests

E. The Commonwealth's Interests

IX. Seclusion

A. Seclusion Statutes and Regulations

B. Seclusion Facilitites at the

Austin and May Units

C. Seclusion Practices at the

Austin and May Units

I. The Austin Unit

2. The May Unit

D. Discussion

X. Named Plaintiffs' Claims for Damages

A. Findings of Fact Related to

Damages Claims

I. May Unit Plaintiffs

a. Medication

b. Seclusion

2. Austin Unit Plaintiffs

a. Medication

b. Seclusion

B. Legal Conclusions Related to

Damages Claims

1. Plaintiffs' Federal Claims

2. Plaintiffs' State Claims

a. Assault and Battery,

False Imprisonment

b. Malpractice

IJ. Medication Negligence

Claims

2. Seclusion Negligence

Claims

45a

OPINION

TAURO, .. October 29, 1979

I INTRODUCTION

This class action involves a multi-faceted attack

against certain medication and seclusion policies allegedly

followed at the May and Austin Units of the Boston State

Hospital (Hospital), a state institution for the mentally

ill. The named plaintiffs, all either voluntary or

involuntary patients at one time or another at these

facilities, seek injunctive relief for the class and

award of money damages for themselves.

Plaintiffs’ basic grievance is that the defendants, all

of whom have served on the Hospital staff, maintained

policies of forced medication and involuntary seclusion in

non-emergency circumstances. Plaintiffs allege that

these policies infringed on the constitutional rights of

Hospital patients. In addition, they allege that such

policies violated standards of acceptable medical care.

On October 16, 1975, this court certified a class

consisting of "all persons, who are presently, or will be,

patients at the May and Austin Units of Boston State

Hospital and who have been or will be secluded without

their consent or medicated without their consent."

46a

With respect to the challenged medication

practices, plaintiffs theorize that, although they have a

right to receive treatment when confined at a state

mental institution, they, nonetheless, have a

constitutional right to refuse such treatment. Plaintiffs

acknowledge, however, that their asserted right to refuse

treatment is not absolute, and must yield to the Hospital's

right to impose treatment in order to protect their safety

or that of other patients and Hospital staff. Absent such

emergency circumstances, Plaintiffs maintain they are

competent to decide whether or not to receive certain

treatment, and that their decisions must be respected by

Hospital staff.

As for the seclusion issue, plaintiffs maintain that

state law permitted defendants to restrain patients in

seclusion rooms only when there was a substantial threat

of physical harm to patients or staff. Plaintiffs

allege that, notwithstanding such statutory proscription,

defendants routinely employed seclusion as a treatment

modality, and not merely as an emergency restraint.

2/ M. G. L. A. ch. 123, §21 provides that "restraint may be

used only in cases of emergency such as the occurrence

of, or serious threat of, extreme violence, personal injury,

or attempted suicide."

47a

The defendants have primary and fall back positions

with respect to plaintiffs' allegations and claims. Their

fundamental defense is that patients committed to a state

mental institution, whether voluntary or involuntary, are

incompetent to make treatment choices. Defendants

assert that mental patients are committed to mental

hospitals for treatment, and that the state has a parens

patriae obligation and right to provide that treatment,

even in the face of opposition by the patient. In short,

defendants argue that committed mental patients?!

have no constitutional right to refuse treatment in either

an emergency or non-emergency situation. Defendants

concede, however, that any treatment provided must be

consistent with reasonably accepted standards of medical

practice.

In addition to their legal contention, defendants

offer a factual defense to plaintiffs' medication claims.

They maintain that none of the named plaintiffs was

forcibly medicated in a non-emergency. Moreover,

defendants assert that no patient at the Hospital was

forcibly medicated unless there was at least a

"psychiatric emergency,“ a term they define as the

foreseeable deterioration of the patient absent

medication.

3/ Massachusetts law provides for both voluntary and

Involuntary commitments. See Sec. V infra.

48a

Concerning the seclusion issue, defendants concede

that M. d. L. A. ch.123, §21 is the controlling standard.

They maintain, however, that no patient was secluded in

violation of that standard.

The examination of these medication and seclusion

issues involved 72 trial days, more than 8,000 pages of

transcript and over 2,300 pages of post-trial briefs. The

findings and conclusions of this court concerning these

issues are set forth below.

I. PROCEDURAL BACKGROUND

This action was commenced on April 27, 1975, when

several patients at the May and Austin Units of Boston

State Hospital filed a civil rights action under 42 U.S.C.

§1983 seeking to enjoin certain seclusion and medication

practices at the Hospital and to recover compensatory

and punitive damages from those responsible for such

practices.

On April 30, 1975, this court issued a temporary

restraining order prohibiting non-emergency seclusion and

medication of voluntary or involuntary patients without

their informed consent, or that of a guardian in the case

of an incompetent. On May 8, 1975, the parties agreed to

an extension of the temporary restraining order until a

hearing on preliminary or permanent relief was

49a

concluded. Such a hearing commenced in the fall of 1975

and continued for a period of six trial days. Further

hearing was then suspended while the court and the

parties attempted to settle the complex issues involved.

Those efforts continued until June of 1976 when, because

of seemingly irreconcilable differences, a merged trial on

preliminary and permanent injunctive relief was scheduled

for June 21, 1976.

Subsequent to that scheduling, defendants filed

motions for summary judgment on all damages claims and

on the injunctive claims relating to the use of seclusion at

the Hospital. The June 21, 1976 date was utilized for

hearing on these motions rather than trial on the merits.

The motions were denied on March 25, 1977.

On March 25, 1977, this court also denied

defendants' motion to dissolve the temporary order

restraining forced medication. That decision was

appealed and arguments were held on September 9, 1977

by the First Circuit Court of Appeals. An order affirming

this court was issued on December 8, 1977.

All action in the case had been stayed pending

appeal. Trial on the merits commenced in December of

1977 and concluded on January 31, 1979. Seventy-two trial

days were dedicated to the testimony of more than 50

witnesses, most of whom were psychiatrists, psychologists

50a

or other professionals. During the next several months,

the parties prepared extensive post-trial briefs and

proposed findings of fact. The case was taken under

advisement on August 15, 1979, following final oral

argument.

I. THE PARTIES

A. Plaintiffs

ABLE BOLDEN, age 46, was first hospitalized at

Massachusetts Mental Health Center in 1953. During the

next twenty years, he was admitted to various state

hospitals, primarily because episodic violent behavior. In

December of 1974, he was involuntarily committed to the

May Unit for 10 days. On January 3, 1975, Bolden was

again admitted to the May Unit, this time for a 20 day

observation which was extended to February 12, 1975. On

February 22, 1975, he was involuntarily committed on a

temporary 10 day admission, and on March 25, 1975,

he was again involuntarily committed, this time for six

months.

BETTY BYBEL, age 38, was first admitted to the

Austin Unit for observation by a court order on January 3,

1973. She had two prior hospitalizations for the treatment

of mental illness, first in New Jersey (1967) and again in

4/ See Sec. V (B) infra.

5la

Massachusetts (1972). Between January 3, 1973 and April

25, 1975, she was admitted to the Austin Unit on

Approximately 28 occasions, sometimes voluntarily and

sometimes involuntarily.

JAMES COLLERAN, age 21, was first admitted to

the Austin Unit for six months. From August ll, 1974 to

December 10, 1974, he was held at the Austin Unit pending

a court commitment hearing. That hearing resulted in an

involuntary commitment through June 9, 1975. He is one

of eleven children. Both of his parents, now dead,

suffered from mental illness. For the past ten years, he

has had many encounters with the juvenile court system.

Prior to his Austin admission, he was involved in episodes

of violence. |

DONNA HUNT, age 20, was first admitted to the

Austin Unit in January 1974 on an involuntary ten day

commitment. Her mother signed a conditional voluntary

commitment contract on her behalf in January of 1974.

After becoming 16, Donna agreed to a voluntary

commitment. She remained in that status from May 1974

until August 1975, when she was involuntarily committed

to the Austin Unit. When she was three years old she

contracted measles encephalitis, which apparently

resulted in organic brain damage. Her record

demonstrates many instances of violent behavior.

52a

RUBIE ROGERS, a woman in her late thirties, has

had a number of May Unit admissions and discharges since

1965. From January 1971 to April 1975, she was a

voluntary patient. She has had a history of thought

disorder, hallucinations and delusions, with occasional

episodes of self-destructive and violent behavior.

WILLIE WADSWORTH, age 29, was transferred to

the May Unit from Bridgewater State Hospital on April 17,

1974, and was involuntarily committed until April 16,

1975. A large and powerfully built man, he was first

admitted to a mental hospital at age 17.

HAROLD WARNER, age 52, spent seventeen years

at Bridgewater State Hospital after conviction of assault

and battery of a twelve year old girl. In August of 1974,

he was released by order of the Superior Court and

admitted to the May Unit as an involuntary patient.

B. Defendants

EUGENE CACCIOLA received his M.D. in 1974 from

Tufts University. From January to July, 1975, he was a

resident on ward 4 of the May Unit. Claims have been

brought against him by Rubie Rogers, Able Bolden, and

Harold Warner.

MICHAEL GILL received his M.D. from the Royal

College of Surgeons in Dublin, Ireland. He took his

53a

residency at Boston State Hospital from 1959 to 1962 and

became board certified in psychiatry in 1964. He founded

the Austin Unit in 1966 and held the position of director

until 1977. Dr. Gill is being sued by Donna Hunt, James

Colleran, and Elizabeth Bybel.

JOHN GOODMAN received his M.D. from Boston

University in 1974. From January to June, 1975, he was a

resident on ward 3 of the May Unit. Claims against him

have been brought by Willie Wadsworth and Able Bolden.

RICHARD J. KAHN received his M.D. from Harvard

University in 1955. He spent two years as a psychiatric

resident at Boston State Hospital. From January 1970

through August of 1974, he was inpatient director of the

May Unit. He is board certified in psychiatry. Claims

have been brought against him by Rubie Rogers and

Harold Warner.

WILLIAM G. KANTAR received his M.D. in 1962

from Tufts University. From 1969 to January of 1977, he

was a member of the staff of the Austin Unit, serving as

senior and clinical director of psychiatry. He has been

board certified in psychiatry since 1963. Claims have

been brought against him by Donna Hunt, James Colleran,

and Elizabeth Bybel.

WILLIAM MALAMUD received his M.D. from Boston

University in 1954. From 1955 to 1956, he was a

54a

psychiatric resident at Boston State Hospital. On

September 1, 1974, Dr. Malamud became assistant

superintendent for clinical affairs at the Solomon Carter

Fuller Mental Health Center. From September 1, 1974,

when Dr. Kahn left the May Unit, until March 24, 1975,

when Dr. Seil became the inpatient director, Dr. Malamud

was the acting interim director of the inpatient service at

the May Unit. Dr. Malamud was board certified in

psychiatry in 1964, and certified to practice

psychoanalysis in 1969. Claims have been brought against

him by Rubie Rogers, Willie Wedsworth, Able Bolden and

Harold Warner.

BRIAN MAZMANIAN received his M.D. from St.

Louis University in 1974. He was a resident on ward 4 at

the May Unit from January, 1975 to July 30, 1975. A

claim has been brought against him by Able Bolden.

MICHAEL OSBORNE received his M.D. from

Michigan State University in 1972. He served as resident

at the May Unit from July 1, 1974 to June 30, 1975.

Claims have been brought against him by Rubie Rogers

and Able Bolden.

SANFORD POMERANTZ received his M.D. from

Boston University in 1973. From July 1, 1974 to January 6,

1975, he was a resident at the May Unit. A claim has been

brought against him by Willie Wadsworth.

55a

ELLIOT SCHILDKROUT received his M. D. from

New York University in 1973. From January to July 1975,

he served as a resident on ward A-3 / A-4 of the Austin

Unit. Claims have been brought against him by Donna

Hunt, James Colleran and Elizabeth Bybel.

DAVID SEIL received his M.D. from Yale University

in 1962. From January 1974 until March 1975, he was

director of the Evaluation Service at the May Unit. He

served for the next three years as director of inpatient

services at the May Unit. A claim has been brought

against him by Harold Warner.

ALLAN SIEGEL received a doctorate in counseling

from Boston University. Dr. Siegel served as supervisor

of ward 3 in the May Unit from June 1974 to June 1976.

He is a licensed psychologist. A claim has been brought

against him by Willie Wadsworth.

JOHN SZLYK received his M.D. from Tufts

University. From July to December 1974, he served as a

resident at the Austin Unit on ward A-4. A claim has

been brought against him by Donna Hunt.

JEAN TURNQUEST received her M. D. from

Aberdeen University in 1971. From July 1, 1974 to January

5, 1975, she was a resident on ward 3 of the May Unit. A

claim against her has been brought by Willie Wadsworth.

56a

IV. BOSTON STATE HOSPITAL FACILITIES AND

PERSONNEL

Boston State Hospital is a multi-unit campus type

facility located in the Dorchester section of Boston.

From 1973 to 1975, Austin and May were two of these

units. By the end of 1975, Austin was affiliated solely

with Tufts Bay Cove Mental Health Center, while May

became part of the Solomon Carter Fuller Mental Health

Center.

The May Unit was a teaching facility utilized by the

Boston University Medical School. Austin had a

comparable affiliation with Tufts. Both served as state

hospitals for mentally ill adults, age 16 and over. The

‘population of each is determined by the residence of the

patient. The Commonwealth is divided into mental health

regions which, in turn, are subdivided into "catchment

areas." Absent special circumstances, patients may

receive treatment only in the catchment area that

includes their residence. The catchment area served by

Austin consisted of South Boston and parts of Chinatown

and North Dorchester. The catchment area for the May

Unit consisted of parts of Back Bay, the South End, most

of Roxbury, and parts of Dorchester.

A. The Austin Unit

Austin was built in 1918-20 as a maximum security

57a

ward for 160 female patients. It is a drab, gloomy, poorly

lighted structure in a state of chronic disrepair. Poor

lighting restricted evening recreational opportunities.

Plumbing problems were constant, often resulting in

basement flooding and the odor of sewage through the

building. As of January 1975, wards A-3 and A-4 were on

the second floor while A-6 wag on the third floor. The

ward staff of A-3 and A-4 was divided into three teams to

handle the approximately 30 patient case load. The

Austin Unit was moved to a new location in 1977. Its

name was changed to the Johnson Unit.

Between January 1973 and April 1975, Austin's daily

census averaged about 75 inpatients. Of the

approximately 500 admissions per year, about 60% were

re-admissions. As of 1974, the average length of hospital

stay was 14 days, down from an average of 17 days in

1972. Between January 1974 and January 1975, there were

approximately 35-45 patients per day on ward A-4, about

half of whom were females. Most of these were over 25

years old. At any given time, four or five might be under

20 years of age. There was rarely a patient under 16.

Approximately 20 to 25% of the patient load were

potentially violent, with about 3 to 5% actually engaging

in violent behavior periodically.

From January 1973 to April 1975, the number of

direct care staff at Austin averaged between

58a

60-65. Twenty-three fulltime nurses were on duty on

three eight-hour shifts. Two physicians were assigned to

each ward, as well as a staff psychiatrist, resident

psychiatrist, at least two registered nurses, one social

worker, a psychologist, a rehabilitation counselor, and

mental health workers. A nurse would be present 90-95%

of the daytime and a doctor was always available seven

days a week. There was an average of four staff people

for each ward during the evening shift and about three

during the night shift. A "team system" of patient care

was utilized. Each team was headed by a resident and

included members of the various professional disciplines

working within the hospital.

The defendant Dr. Gill was the Austin unit chief

from January 1973 through January 1975. As such, he had

overall responsibility and authority. In addition, he had

primary psychiatric supervisory responsibility for ward

A-6.

The defendant Dr. Kantar became responsible for

the merged ward A-3 and A-4 and Dr. David Curtis took

over responsibility for ward A-6 as of January 1975.

Thereafter, Dr. Gill no longer had responsibility for any

particular ward, but made building rounds three days a

week. He did not attend daily ward rounds.

59a

Dr. Kantar, the staff psychiatrist, supervised the

psychiatric residents. These residents served for terms of

six months. They included Dr. Press (not a defendant)

from January 1974 until June 1974; the defendant Dr.

Szlyk from July 1, 1974 until the end of December 1974;

and the defendant Dr. Schildkrout from January 1973 until

June 1975.

In the fall of 1974, Layne Erban became the director

of nursing of the Austin Unit, and had administrative

responsibility for the entire Austin nursing and attendants

staff. Her responsibilities included scheduling, coverage

and policy. In addition, she participated in the activities

of the ward A-6 until its merger with A-3. Although

Erban did not have line authority over residents, she was

one of their prime sources of information with respect to

practices and policies at Austin. If a resident should fail

to follow those practices and policies, she would inform

Dr. Kantar or Dr. Gill.

Each ward had a head nurse to whom responsibilities

were delegated by Erban. Essentially, the head nurse was

the ward administrator, particularly with respect to

scheduling patient treatment and general implementation

of policy. Dr. Gill had line authority over Layne Erban

and each of the ward administrators after the fall

60a

of 1974. Prior to this time he did not have the power to

hire or fire nurses.

*

B. The May Unit

The May Unit was in a three storied U-shaped

building. Offices and meeting rooms were on the first

floor. The wards were on the second and third floors, and

had an inpatient capacity of about 90. Wards 3 and 4,

prime subjects of this litigation, were on the second

floor. Overall, the building was in chronic disrepair. The

heating system was particularly unreliable.

The May staffing pattern was headed by a clinical

director. Under him was the senior ward psychiatrist

who, in turn, supervised the resident psychiatrists.

The nursing staff reported to the director through

the nursing director. Subordinate to her were the ward

head nurses who, in turn, supervised the ward LPNs. At

the bottom of the totem pole were the mental health

workers.

The director had overall responsibility for clinical

and administrative management of the staff and plant.

This responsibility included consultations with and

supervision over the psychiatric and nursing staff, as well

as the creation and implementation of treatment policies.

6la

From 1970 through most of 1974, Dr. Kahn was

director of the May Unit. In September 1974, the

defendant Dr. Malamud became acting director until the

defendant Dr. Seil assumed the post in March 1978.

Dr. Siegel, a psychologist, was in charge of ward 3.

He had primary responsibility for the clinical activities on

the ward. His position included the supervision of

resident psychiatrists and consultation with staff and

patients with respect to development of policies. He

would also preside at weekly ward meetings. Although his

primary responsibility involved ward 3, Dr. Siegel also

served as a consultant to Drs. Mazmanian and Cacciola,

the residents on ward 4, as well as the resident on ward 6,

Dr. Holstein. Dr. Siegel supervised Drs. Pomerantz and

Turnquest when they were ward 3 residents, as well as

their replacements, Drs. Goodman and Goldberg. He also

supervised two ward 4 psychologists. Dr. Siegel did not

have supervisory responsibility for the nursing staff.

Each ward 3 resident was responsible for the

medical and psychiatric care of approximately 10-12

patients. On ward 4, three teams functioned, two under

direction of Drs. Cacciola and Mazmanian. The third was

supervised by a social worker. The per resident patient

load on ward 4 varied from a low of eight

62a

to a high of 15 during the first half of 1975. The May Unit

daily census between January 1972 and September 1974

varied between 75 and 100 patients. From January to

June 1975, the census averaged about 120 patients,

approximately 25 of whom were on ward 3.

The typcial day shift averaged three to five in staff,

in addition to two or three doctors. There were slightly

fewer staff on the evening and night shifts, although

doctors were "on call" on a rotating basis. The average

patient census was 21. Staff had a number of additional

responsibilities that required their presence outside the

ward.

As of late 1974, May was without a full time clinical

director, and suffered a shortage of full time senior staff

direction in wards 3, 4, and 6. There were three head

nurses for the entire Unit. The ward 3 day shift had to

make do with a total of six to eight licensed practical

nurses and attendants. On the second and third shifts,

there were about four to six LPNs and attendants.

Each ward had two or three treatment teams.

Typically, they would include resident psychiatrists,

psychologists, nursing staff, social workers and the

patients. The teams met twice a week to discuss details

of particular patient treatment plans. Most treatment

63a

planning took place during the day shift. There were ward

intershift meetings primarily involving the 7-to-3 and

3-to-ll shifts. The Il-to-7 and 7-to-3 shifts also met on

the average of once a month.

A number of activity programs were available for

patients at both Austin and May. Those available at

Austin were art therapy, home care workshop, drama,

exercise, plants, pottery, daily living, newspaper and

sports. Among the activities available at May were ward

meetings, team meetings, individual meetins between a

patient and his or her administrator, occupational

therapy, daily living, physical therapy, rehabilitation

therapy, music, games and alcoholics meetings.

V. PROCEDURES FOR COMMITMENT TO THE BOSTON

STATE HOSPITAL Standards for commitment to

state-run mental institutions in Massachusetts are defined

by statute. Most admissions fall under one of the

following categories:

A. Conditional 2 Admission

* * * e 2 2

Patients needing treatment for mental illness are

encouraged to volunteer for commitment. Application

may be made by a parent or guardian, although their

64a

approval is unnecessary if the applicant is 16 years or

older. The hospital may be Inspected by the prospective

voluntary applicant prior to admission. The voluntary

patient may be discharged upon request, after giving

three days notice to institution authorities.

B. Hospi for 10

An involuntary 10 day commitment of a person may

be obtained upon a physician's statement that, absent

hospitalization, a lklihood of serious harm exists due to

mental illness. After admission, the patient is examined

for 10 days to determine whether failure to hospitalize the

patient further would create a likelihood of serious hard

due to mental illness. If such a likelihood exists, the

hospital may petition the court for civil commitment.

C. NE 1 Civil Commitment

If the hospital administrator determines that

continued hospitalization of a patient is necessary

because a likelihood exists of serious harm due to mental

illness, he may petition the court for the patient's

commitment. The court will notify the patient and the

patient's nearest relative or guardian who will have

65a

the opportunity to request a hearing. The court may

order the patient committed for a period of up to one

year.

D. NE of 127 Alcoholics

A police officer or a physician may petition any

district court for commitment of a person deemed to be

an alcoholic. If the court finds there is a likelihood of

serious harm because of alcoholism, that person may be

ordered committed for up to 15 days.

3 Retention of the M Ret

All admissions of the mentally retarded are

voluntary unless the hospital determines that the retarded

person is also mentally ill and that release would create a

likelihood of serious harm. In such a case, the patient

would be required to submit a three day notice of

intention to leave and the hospital administrator could

petition the court for permission to retain custody.

Vi. DEPARTMENT OP MENTALHEALTH

AT BOSTON STATE HOSPITAL

Commitment to Boston State, even on an

66a

involuntary basis, is not an adjudication of incompetence.

Department of Mental Health (D.M.H.) Regulation §

221.02 states:

Civil Rights. No person shall be deprived of

the right to manager his affairs, to contract,

to hold professional, occupational or vehicle

operator's licenses, to make a will, to marry,

to hold or convey property, or to vote in local,

state or federal elections solely by reason of

his admission or commitment to a facility

except where there has been an adjudiction

that such person is incompetent, or when a

conservator or guardian has been appointed for

such person. In the event of conservatorship,

a patient's civil rights may be limited only to

the extent of the conservator's adjudicated

responsibility.

The substance of this section has been codified in

M. G. L. A. ch. 123, § 25.

A committed patient has the right to receive

"treatment suited to his needs which shall be administered

skillfully, safely and humanely with full respect to his

dignity and personal integrity." D.M.H. Reg. § 221.03.

D. M. H. regulations also provide that a committed person

67a

shall receive treatment and rehabilitation in

accordance with accepted therapeutic

practice, including oral, subcutaneous and

intramuscular medication when appropriate

and when ordered by a physician. However,

electroconvulsive treatment and lobotomy

shall require separate consent by the patient

pursuant to M.G.L.A. ch. 123, § 23.

D.M.H. Reg. § 220.02. Another D.M.H. regulation

requires that

lel ach facility under the supervision and

control of the Department or licensed by the

Department shall post a copy of the rights

articulated in this regulation in the admission

room of the facility in each residential unit or

any other appropriate place in the facility.

D. M. H. Reg. M.H. 16-7. In accordance with that

requirement, a statement of patients’ civil rights was

posted on the wards of the May and Austin Units., and was

included in a packet of information presented patients on

admission. The poster stated:

Your Rights

You Have The Right To Be Treated With Dignity

And Respect

You Have The Right To Privacy

68a

TREATMENT RIGHTS:

You have the right to:

- be told in detail what is wrong with you,

what alternative treatments are

available, and to choose from these

alternatives,

- be informed of the risks and possible side

effects of treatment, and to refuse

treatment at any point.

Restraints and Seclusion: You may be

restrained only in case of emergency. Such

restraints or seclusion must be justified in

your record, and must be reviewed by the

superintendent within 8 hours. :

The admission packet stated:

PROCEDURES FOLLOWING ADMISSION:

A course of treatment may include

counselling, medications, electroconvulsive

treatment, and treatment of any medical

condition that the patient may be found to

have.

No medical or surgical treatments including

electroconvulsive treatment are given without

the consent of the patient.

69a

Vi. ANTI-PSYCHOTIC DRUGS

The plaintiffs' principal objection: to forced

medication is the potential for anti-psychotic drugs to

cause certain adverse side effects. Because of that

adverse potential, plaintiffs maintain that the decision

whether to reject or accept medication in a

non-emergency situation should rest with the patient.

Anti-psychotic drugs are chemical agents used to

manage and treat serious mental illness. They are also

referred to as neuroleptic drugs and psychotropic drugs.

The drugs that the plaintiffs received included Thorzine,

Mellaril, Prolixin and Haldol. In general, the drugs

influence chemical transmissions to the brain, affecting

both activatory and inhibitory functions. Because the

drugs’ purpose is to reduce the level of psychotic thinking,

it is virtually undisputed that they are mind-altering.

Foremost among the possible side effects of

anti-psychotic drugs is tardive dyskinesia. Tardive

dyskinesia is a neurological side effect which may appear

after prolonged use of antipsychotic drug treatment. The

disease is the outcome of a complex patient-drug

interaction which is not currently well understood.

5/ Sovner, DiMascio, Berkowitz, and Randolph, "Tardive

Dyskinesia and Informed Consent," Psychosomatics,

March, 1978 at 177.

70a

The overt symptoms of tardive dyskinesia include certain

involuntary motor movements, particularly of the face,

lips, and tongue. Tardive dyskinesia can also cause the

involuntary movement of fingers, hands, legs and the

pelvic area. In its most progressive state, the disease can

interfere with swallowing and can affect all motor

activity. While in mild cases the disease can simply be a

source of embarrassm ent, it can be physically and

psychologically disabling. / Until very recently,

tardive dyskinesia was considered irreversible. Some

studies now suggest that in certain cases it can be

effectively treated. /

Recent studies also suggest that tardive dyskinesia

is more widespread in mental patients than previously

considered. Two studies now place the prevalence of

tardive dyskinesia among chronically hospitalized

schizophrenics at 50% and 56%. With respect to

outpatients, one survey has reported a prevalence rate of

41%.2/ Although this court is unpersuaded that any of

6/ Id. at 173.

1/ Id.

8/ Id. Another author has put the incidence of tardive

dyskinesia at 30 to 50 per cent of patients who have been

treated with drugs for several years. G. Crane, "Two

(footnote continued)

7la

the named plaintiffs suffered from tardive dyskinesia, see

Sec. XI (A) infra, several of the defendants have admitted

that other patients at Boston State suffered from the

disease.

There are also a variety of neurological side effects

of anti-psychotic drugs, known as extrapyramidal effects.

These include akathisia (motor restlessness — the inability

to sit still), akanesia (physical immobility and lack of

spontaneity), dystonia (spasmodic muscle reaction

frequently characterized by a twisting of the neck) and

pseudo-parkinsonian syndrome (mask-like face, rigidity of

the hand). These conditions are not considered to be

irreversible.

Vill. THE INJUNCTION CLAIM AGAINST

MEDICATION PRACTICES

Plaintiffs allege that the defendants have

impermissibly followed a policy of forcibly medicating

committed mental patients, and that such policy has

denied them their constitutionally protected right to

refuse treatment.’ Although plaintiffs urge this court

8/ (footnote continued)

Decades of Psychopharmacology and Community Mental

Health: Old and New Problems of the Schizophrenic

Pt zent“, Transactions of the New York Academy of

Sciences, November, 1974.

9/ Plaintiffs theorize their right to refuse treatment

from the provisions of the First, Fourth, Fifth, Eighth and

(footnote continued)

72a

to recognize a right to refuse treatment, they do not

maintain that such a right is absolute. They acknowledge

that in emergencies it must yield to the state's interest in

medicating.

Defendants proffer a three-pronged defense to

plaintiffs' allegations. First, they maintain that a

committed mental patient is per se incompetent to decide

whether or not to receive treatment. Second, they deny

that any patient was forcibly medicated except in

circumstances amounting to at least a psychiatric

emergency. Third, they assert that committed mental

patients, whether voluntary or involuntary, have no

constitutional right to refuse treatment in any situation —

emergency or non-em ergency.

The respective positions of the parties set up the

fundamental issue as to when, if ever, an institutionalized

mental patient may be forcibly medicated— el in

non-em ergencies. Prior to discussing the legal question of

whether there exists a fundamental right to refuse

psychotropic medication, it is necessary to consider

certain threshold issues.

9/(footnote continued)

Ninth Amendments, as guaranteed to them by the Due

Process Clause of the Fourteenth Amendment to the

United States Constitution.

10/ This term includes forced medication by injection,

‘and the threat thereof, upon a refusal to take medication

orally.

73a

A. The Competen of Mental Patients to Refuse

Ur l W

A pivotal issue dividing the parties in this case is

the competency of mental patients to decide rationally

whether or not to receive treatment. At final argument,

defendants took the flat position that, once admitted to a

mental institution, a patient is deemed incompetent to

decide whether or what to accept by way of treatment in

either an emergency of nonemergency situation. And in

their Trial Brief, defendants asserted that

[the] Commonwealth is not seeking to forcibly

or involuntarily medicate patients competent

to decide for themselves. (Defendants' Trial

Brief p.27) (emphasis supplied).

Hence, defendants argue that plaintiffs as incompetents

cannot assert any constitutional right to refuse

treatment. Basically, defendants theorize that,

once an individual becomes incompetent, the

state must act as parens patriae. As such, it

has the duty and the right to care for the ‘best

interest' of the incompetent, even if that

oecasionally means overriding a decision made

by the individual while incompetent.

n re. Boyd, 403 A.2d 744, 748 n.8 (D.C. Ayp. 1979)

(citations omitted).

74a

Plaintiffs disagree. They argue that, as a mater of

state law, mental patients are presumed competent to

manage their affairs /// and that such presumption must

be deemed to include competence to make treatment

decisions.

The weight of evidence persuades this court that,

although committed mental patients do suffer at least

some impairment of their relationship to reality, most are

able to appreciate the benefits, risks, and discomfort that

may reasonably be expected from receiving psychotropic

medication. This is particularly true for patients who

have experienced such medication and, therefore, have

some basis for assessing comparative advantages and

disadvantages. Indeed, a fundamental concept for

treating the mentally ill is the establishment of a

therapeutic alliance between psychiatrist and patient.

Implicit in such an alliance is an understanding and

acceptance by the patient of a prescribed treatment

program.

Moreover, defendants' position that commitment per

se demonstrates the incompetence of a mental patient to

decide treatment questions is at odds with M.G.L.A. ch.

123, § 25 and D. M. H. Reg. § 221.02. These provisions state

u / Plaintiffs rely on M. G. L. A. ch. 123, §25 and D. M. H.

Reg. 8221.02. See Sec. VI supra.

75a

unequivoleally that, although committed, a mental patient

is nonetheless presumed competent to manage his affairs,

dispose of property, carry on a licensed profession, and

even to vote. That presumption of competency prevails

unless and until there has been an adjudication of

incompetency by a court, following notice and hearing.

D.M.H. Reg. 88 221.06, 222.05 22/

To be sure, these regulatory provisions do not

expressly grant mental patients a right to refuse

treatment, except with respect to electrical shock and

lobotomy. But, M.G.L.A. ch. 123, § 25 and related

D.M.H. regulations do recognize in absolute terms the

competence of committed persons to manage their affairs

and participate in a variety of challenging activities.

That recognition tilts the scales in favor of presuming, as

well, the competence of a committed mental patient to

make treatment decisions, absent an adjudication to the

contrary2/

12/ At final oral argument, deferidants took the position

that, although a committed mental patient would be

presumed competent to deed his home to his doctor, he

would not be presumed competent to decide whether to

follow that doctor's advice concerning taking of

medication. Such an argument would make a doubter of

even the most credulous.

13/ Added support for this argument is the D. M. H.

‘authorized poster on the walls of the Austin and May

wards stating that patients have the right "to refuse

treatment at any point." Supra p. 35.

*

76a

B. Guardianship

The D.M.H. regulations provide that a patient's

competence may be called into question. Indeed, they

impose an obligation upon the institution to review

periodically a patient's competence to "manage rationally

the ordinary affairs of life," D.M.H. Reg. § 222.05, and to

seek the court appointment of a guardian if the

competence of a patient is in doubt.

Assuming an adjudication of incompetence is made,

a guardian would be appointed to manage the patient's

affairs. Plaintiffs contend that the guardian could make

medication decisions on behalf of the incompetent patient

in non-emergencies, thereby serving the Commonwealth's

parens patriae interest in treating the patient. Given an

emergency, plaintiffs concede that the Commonwealth

would have a right to forcibly medicate any committed

patient, competent or otherwise. Thus, plaintiffs contend

that the Commonwealth's interest in preserving order and

safety at the Hospital is adequately served as well.

The defendants have both legal and factual

objections to the reliance on guardians in the treatment

process. First, defendants contend that, even assuming

committed patients have a right to refuse treatment, such

right would be "personal" and not within the

representative powers of even a judicially appointed

guardian. Second, they contend that the guardianship

scheme has proved impracticable.

77a

In support of their legal theory, defendants cite the

following passage from Eisenstadt v. Baird, 405 U.S. 438,

453 (1972:

If the right of privacy means anything, it is

the right of the individual, married or single,

to be free from unwarranted governmental

intrusion into matters so fundamentally

affecting a person as the decision whether to

bear or beget a child. (Emphasis in original).

The defendants, however, miss the import of the court's

admonition. The key to the Eisenstadt quote is that the

right of privacy means the right of individuals to be free

from unwarranted governmental intrusion in fundamental

personal matters. The fact that a court appointed

guardian may have to act to protect the patient in no way

abrogates his basic right to be free from unwarranted

government intrusion. To decide otherwise would make

defenseless not only judicially declared incompetents, but

small children whose interests traditionally have been

represented and protected by parents and guardians.

Defendants' theory would essentially require such persons

to fend for themselves 24/

K. The danger, if not logie, of the defendants“ position

ecomes clear when extended to the possible circumstance

(footnote continued)

78a

In making medication decisions, a guardian would

not act as a third person, but would merely stand and act

in the place of the patient. The patient's right is not to

get a guardian. It is to be free from unwarranted

government intrusion. The guardian is merely a means for

protecting that freedom.

Distinguishable as well is Parham v. J.L. and J. R.,

47 U.. L. W. 4740 (June 20, 1979), where the Supreme

Court sustained the validity of Georgia's commitment

procedures for minors. While it is true that the Court

rejected the argument that a neutral person must decide

whether or not a child should be committed to a mental

hospital, it in no way suggested that the commitment

decision could be made solely by the physician. There,

the decision to commit was based on the collective

opinion of physician and parents. Here, the appointment

of a guardian would fulfill the parent's responsibility

recognized in Parham.

Most of the defendants' factual contentions

concerning the impracticality of utilizing guardians in the

14/(footnote continued)

of an involuntary, but presumably competent, patient

becoming impregnated while confined. The defendants’

position d mit the institution alone to decide

— 7 cheer’ pore cag birth „ a

on ear contra to the teaching of Roe vy.

Wade, 410 U.S. 13 (1973).

79a

treatment process relate to the manner in which

guardians are appointed. These contentions actually

amount to little more than complaints concerning the

effectiveness of a procedural framework designed and

implemented by the Commonwealth.

The presumption that an involuntary mental patient

is competent to handle his affairs is not a matter of

judical decree. Rather, it is a statutory presumption

created by the Massachusetts legislature, as is the

procedure for challenging that presumption in the courts.

If that statutory scheme is burdensome, redress and relief

should be sought from the legislature.

Similarly, defendants' complaint that guardianship

applications are unduly delayed in the state court is a

matter within the Supreme Judicial Court's general

powers of superintendence and should be brought to that

court's attention. A/ The same may be said for any

complaint as to the ability or integrity of the potential

guardian appointment pool. Moreover, defendants’

assertion that court appointed guardians are "unsuited for

making decisions regarding whether medication should be

imposed on a patient" Det endants“ Trial Brief p. 43) is

presumptuous and inconsistent with the increasingly

15/ In any event, defendants concede that there is

tutory authority for "immediate appointment" in

emergency situations. M. G. L. A. ch. 201, § 14.

80a

accepted doctrine of informed consent which recognizes

that lay persons are presumed to have the capacity to

make treatment decisions 19/

Also to be borne in mind e that juries and judges,

traditionally non-medical persons, are

routinely called upon to pass judgment in medical

malpractice cases. Indeed, the Commonwealth's statutory

procedure for screening such cases provides for an

examining panel of three persons, two of whom may be

non-physi el ans. L

Without merit, as well, is de fendants“ contention

that hospital staff would be required to "run back and

forth to the courts every time a patient's condition

improves or deteriorates." (Defendants' Trial Brief p. 43).

Once a guardian is appointed, no further court

appearances would be required. Of course, it might be

necessary for the hospital staff to maintain a line of

communication with the guardian. To do so, however,

would impose no greater burden than that assumed

anyway by most responsible doctors who routinely consult

with parents and family members, in non-emergencies,

with respect to a patient's condition and course of

treatment.

16/ For example, a patient's Bill of Rights was recently

mplemented in this Commonwealth, a cornerstone of

which requires a patient's informed consent prior to

> yee M.G.L.A. ch. I, § 70E (1), Acts of 1979, ch.

EL M. d. L. A. ch, 231, § 60B,

8la

This court is similarly unpersuaded by defendants'

pleas as to the anti-therapeutic effects of appointing a

guardian. Certainly, labeling a person as incompetent has

a profound effect on his life, and may well have some

impact on that person's self-respect. But, we are not

considering that phenomenon in isolation. We are dealing

with the relative well-being of a patient who has already

suffered the trauma of being confined to an institution

and is now facing the experience of being forcibly

disrobed and then injected with psychotropic medication

against his will. Balancing all the circumstances, it is

difficult to see how the incompetent mental inpatient

would be damaged by having a guardian appointed to

ensure against any unwarranted intrusion into his life.

This court concludes, therefore, that committed

mental patients are presumed competent to make

decisions with respect to their treatment in

non-emergencies. Given an adjudication of incompetence,

a guardian may exercise for and on behalf of a committed

mental patient any rights he may have to make treatment

decisions in a non-emergency 2% /

18/ A recent California case supports the proposition that

T guardian 1 55 exercise the patient's right to refuse

medication. In re Young, 48 L.W. 2238 (Calif. Superior

Court, Orange County, ded September ll, 1979) (on the

(footnote continued)

82a

C. The Right To Refuse Treatment in an Emergency

As was noted at the outset of this opinion, the

parties agree that forced medication is permissible in an

emergency situation. They disagree, however, as to what

circumstances amount to an emergency situation

justifying such treatm ent.

Plaintiffs urge this court to define an emergency

justifying forced medication as one in which there exists a

substantial likelihood of personal injury to the subject

patient, other patients or staff members. Plaintiffs

recognize that medicine is an inexact science in which

prognoses cannot be made with mathematical certainty.

But, plaintiffs say that the threat of physical harm must,

at the least, be more likely than not before there may be

forced medication. Such a standard amounts to an

expression of "probability", long a common bench mark

for the admissibility of expert testimony concerning

medical issues. Basically, the plaintiffs urge that

emergency standards that control the imposition of

18/ (footnote continued)

basis of fundamental right to refuse medication,

conservator has the right to obtain court-ordered

termination of breathing device for comatose patient).

83a

seclusion"®/ be applied as well as to the issue of forced

m edication.

Defendants disagree, arguing that seclusion is a

restraint while medication, forced or voluntary, is

treatment. It would be inappropriate, defendants

maintain, to impose on a treatment situation the strict

standards for applying restraints. Instead, the defendants

urge this court to recognize a broader definition of

emergency — a so called "psychiatric emergency." Under

defendants' theory, a psychiatric emergency justifying

forced medication would exist given any of the following

sit uations:

1) suicidal behavior, whether seriously meant or a

gesture, 2) assaultiveness, 3) property destruction, 4)

extreme anxiety and panic, 5) bizarre behavior, 6) acute

or chronic emotional disturbance having the potential to

seriously interfere with the patient's ability to function on

a daily basis, 7) the necessity for immediate medical

response in order to prevent or decrease the likelihood of

further severe suffering or the rapid worsening of the

patient's clinical state.

19/ M.G.L.A. ch. 123, § 21 provides, in per ent part, that

restraint may be used only in "cases of emergency such as

the occurrence of, or serious threat of, extreme violence,

personal injury, or attempted suicide... M. G. L. A. ch.

123, 8 1 defines restraint as including "confinement in a

place of seclusion."

84a

Although the defendants maintain that none of the

named plaintiffs was forcibly medicated except when

there was a serious threat of personal injury(the seclusion

standard), they do admit that other class plaintiffs at

Boston State have been forcibly medicated in

circumstances that would not have justified the use of

seclusion. (Defendants' Trial Brief pp. 14-15). But,

defendants insist that any forced medication occurred

only in circumstances that would fall within their

proffered definition of a psychiatric emergency,

Basically, the defendants say that no patient at Boston

State was ever forcibly medicated except when there was

a sincere belief by defendants that such treatment was

necessary to the patient's recovery, or to provide urgently

needed protection to that patient or others.

The court recognizes that varying degrees of crisis

may typify the average day on a ward of any mental

institution. Patient behavior can be challenging, to say

the least. Attendant staff must respond to such behavior

in a manner that is appropriate, reasonable and adequate.

Given circumstances creating a substantial likelihood of

physical harm to the patient or others, the

Commonwealth, acting through hospital staff, may

respond so as to ensure safety in the hospital community.

The state's parens patriae interest in protecting the

safety of the people extends to the microcosm world of

the hospital, as well as the community at large.

85a

But, defendants’ proffered definition of an

emergency justifying forced medication — thé psychiatric

emergency concept — is too broad, subjective and

unwieldy. The fact that a set of circumstances may fall

within the broad parameters of a psychiatric emergency

does not necessarily justify any and all responsive steps

taken thereafter by a doctor, even though therapeutic and

well within the standards of reasonable medical practice.

This court holds, therefore, that a committed

mental patient may be forcibly medicated in an

emergency situation in which a failure to do so would

result in a substantial likelihood of physical harm to that

patient, other patients, or to staff members of the

institution.

D. The Right to Refuse Treatment in a Non-Emergency

Given the uncontested right of the state to impose

treatment without informed consent in an emergency, the

court must now decide whether the state has a

comparable right in a non-emergency. Because the state

contends that the status of voluntary and involuntary

patients is substantially different, their rights will be

considered separately.

1. The Involuntary Patient's Right to Refuse

en

86a

As a matter of focus, it is important to bear in mind

that in this case we are dealing with a hospital setting,

not a jail. But, a mental hospital is unique in that its

patient community is composed primarily of seriously

disturbed persons, many of whom have the potential for

dangerous behavior. And so whatever rights a patient

may have in such a setting must be balanced with the

needs and exigencies of the hospital community as a

whole. Wolfe v. McDonnell, 418 U.S, 539 (1974).

The prime purpose of any hospital is to treat.

Boston State is no exception. In the case of an

involuntarily committed patient Boston State has a duty

to provide treatment. Stated another way, the

involuntarily committed patient has a right to receive

treatment. The question here is whether the hospital's

duty to provide necessary treatment carries with it an

implicit right to impose such treatment contrary to a

patient's expressed wishes. In considering this question, it

is important to have in mind that plaintiffs do not assert a

right to refuse all treatment at all times. Their prime

contention is that committed patients have a right not to

be forcibly injected with psychotropic medication in a

non-emergency situation, or where there are less drastic

or less invasive alternatives available.

87a

a. The Involuntary Patient's Right to Privacy

This court has already found that psychotropic

medications are powerful and potentially mind-altering

drugs. See Sec. VI supra. Plaintiffs argue that the

forcible injection, without informed consent, of such

medication violates a patient's constitutional right to

privacy. They point out that the right of privacy has been

broadly interpreted and applied in such diverse areas as

marital relations,22/ contraception, 2/ child

rearing,22/ possession of obscene material in the

home. and bodily integrity.24/

Moreover, the Massachusetts Supreme Judicial Court

has recognized that "in appropriate circumstances" a

patient's constitutional rights may include "the right of a

patient to preserve his or her right to privacy against

unwanted infringements of bodily integrity...“

Superintendent of Belchertown v. Saikewicz, 1977 Mass.

20/ Loving v. Virginia, 388 U.S. 1 (1967).

21/ Griswold v. Connecticut, 381 U.S. 479 (1956).

22/ Pierce v. Society of Sisters. 268 U.S. 510 (1925).

23/ Stanley v. Georgia, 394 U.S. 557 (1969).

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

88a

Adv. Sh. 2461. 370 N. E. 2d 417, 424 (1977). Significant to

the issue here is that court's comm ent:

The constitutional right to privacy ... is an

expression of the sanctity of individual free

choice and self-determination as fundamental

constituents of life. The value of life as so

perceived is lessened not by a decision to

refuse treatment, but by the failure to allow a

competent human the i of choice.

370 N.E. 2d at 426 (emphasis supplied).—

The defendants concede that a right to privacy may

include "the interest in independence in making certain

kinds of important decisions." Whalen v. Roe, 429 U.S.

589, 599-600 (1977). (Defendants' Trial Brief p. 25). But,

they argue that plaintiffs' interest in refusing treatment

in a mental institution setting is not a right fundamental

to concepts of ordered liberty traditionally recognized

and protected by the Supreme court.

25/ The root premise is the concept, fundamental in

American jurisprudence, that el very human being of

adult years and sound mind has a right to determine what

shall be done with his own body." Canter v.

8 ee 772, 780 (D.C. Cir.), cert. J, .

972).

26/ Roe v. Wade, supra, 410 U.S. at 152.

89a

The defendants' position does not give due regard to

the plight of a patient who has been committed to a state

mental institution. We know that the committed mental

patient has been quarantined from home, family and

society, not for adjudged criminal activity, but because of

sickness — mental illness.

The committed patient is in a foreign setting. He is

in need of treatment, yet is presumed to be competent.

Absent a successful petition by the hospital superintendent

to establish a guardianship, we must assume that the

hospital regards the patient as competent to manage his

affairs. /

At final argument, the Commonwealth conceded that

a committed patient would have the right to sell his home,

but maintained that the patient has no rights with respect

to what treatment to receive, if any, in a non-emergency

situation. Common sense dictates a contrary conclusion,

however. Certainly the right to dispose of one's property,

and the corollary right to protect and hold such property,

are fundamental to any concept of ordered liberty. See

Lynch x: Household Finance Corp., 405 U.S. 538, 552 (1972).

27/ D. M. H. Reg. §221.02 presumes the competency of a

committed person to manage his affairs, unless there has

been an wadjudication of incompetency. See Sec. VIA)

supra and D.M.H, Treatment Regulations, Sec. VI supra.

90a

But, such rights pale in comparison to the intimate decision

as to whether to accept or refuse psychotropic medication

— medication that may or may not make the patient

better, and that may or may not cause unpleasant and

unwanted side effects. The right to make such a decision

is basic to any right of privacy.

b. The Involuntary Patient's First Amendment

Rights

The concept of a right of privacy also embodies First

Amendment concerns.22/ It is clear from the evidence

in this case that psychotropic medication has the potential

to affect and change a patient's mood, attitude and

capacity to think. Such effects may well be considered by

the medical profession as positive steps on the road to

recovery and eventual release from the hospital. But, the

validity of psychotropic drugs as a reasonable course of

medical treatment is not the core issue here. At stake is

the more fundamental question as to whether the state

may impose once again on the privacy of a person, already

deprived of freedom through commitment, by forcibly

injecting mind-altering drugs into his system in a

non-emergency situation.

28/ n varying contexts, the Court or individual Justices

have, indeed, found at least the roots of that right in the

First Amendment... Roe v. Wade, supra, 410 U.S. at 152.

9la

The right to produce a thought — or refuse to do so —

is as important as the right protected in Roe v. Wade to

give birth or abort. Implicit in an individual's right to

choose either abortion or birth is an underlying right to

think and decide. Without the capacity to think, we merely

exist, not function. Realistically, the capacity to think and

decide is a fundamental element of freedom. .

The First Amendment protects the communication of

ideas. That protected right of communication presupposes

a capacity to produce ideas. As a practical matter,

therefore, the power to produce ideas is fundamental to

our cherished right to communicate and is entitled to

comparable constitutional protection. Whatever power the

Constitution has granted our government, involuntary mind

control is not one of them, absent extraordinary

circumstances. The fact that mind control takes place in a

mental institution in the form of medically sound

treatment of mental disease is not, itself, an extraordinary

circumstance warranting an unsanctioned intrusion on the

integrity of a human being. The patient is in an institution

only because he is unable to function safely in society, and

so there is a public interest in civil commitment. The

state may not involuntarily commit a person merely

because of bizarre or unorthodox behavior. 27

29/ See O'Connor v. Donaldson, 422 U.S. 563, 575 (1975)

(footnote continued)

92a

The concept of a therapeutic alliance between doctor

and patient presumes a communication of information as to

the pros and cons of a particular treatment program. The

committed patient has a right to be wrong in his analysis of

that information — a right to be unwise — as long as the

consequences of such error do not pose a danger of physical

harm to himself, fellow patients or hospital staff. And so,

while the state may have an obligation to make treatment

‘available, and a legitimate interest in providing such

treatment, a competent patient has a fundamental right to

decide to be left alone, absent an emergency situation 22/

29/ (footnote continued)

(state may not "fence in the harmless mentally ill solely to

save its citizens from exposure to those whose ways are

different").

30/ As Justice Brandeis stated in his seminal dissent in

Olmstead v. United States, 277 U.S. 438, 478 (1928):

The makers of our Constitution undertook to

secure conditions favorable to the pursuit of

happiness. They recognized the significance

of a man's spiritual nature, of his feelings and

of his intellect. They knew that only part of

the pain, pleasure and satisfactions of life are

to be found in material things. They sought to

protect Americans in their beliefs, their

thoughts, their emotions and their sensations.

(footnote continued)

93a

2. The Voluntary Patient's Right to Refuse

Defendants argue that voluntary patients may not

refuse medication, even in non-emergencies, and still

remain at the hospital. Their position is that patients

volunteering for commitment implicitly agree to accept

the Hospital's treatment program and may not

second-guess the institution staff by picking and choosing

the type of medication to be used. Basically, the

defendants argue a contract theory that would supersede

and amount to a waiver of any supposed right of refusal.

All voluntary patients sign an application that states:

"I understand that during my hospitalization

and any after care, I will be given care and

treatment which may include the injection of

medicines."

Four of the named plaintiffs (Bybel, Hunt, Rogers, and

Warner) were, at times, voluntary patients and so

probably signed such a form. Presumably, they and other

voluntary patients were competent to make the

commitment decision — or someone was authorized to

make that decision on their behalf. See Sec. VIII (A) supra.

30/ (footnote continued)

They conferred, as against the Government, the right

to be let alone — the most comprehensive of rights

and the right most valued by civilized men.

94a

Clearly, parties competent to contract may not

accept provisions of the bargain they favor and then reject

those they wish to avoid. But, such a truth serves only to

raise the question presented here, not answer it. One

remedy for the unhappy voluntary patient is clear, leaving

the hospital. But procedures for doing so require a hiatus

of three days’ notice from the patient to the hospital

superintendent. See Sec. V supra. The issue, therefore, is

really twofold: 1) what is the voluntary patient's right to

refuse treatment from the time of such notice to the time

of departure from the hospital, and 2) even prior to notice,

or absent notice, does the voluntary patient have a

constitutional right to refuse treatment despite any

contractual obligation that may have been established by

the voluntary commitment?

This court holds that the voluntary patient has the

same right to refuse treatment in a non-emergency as does

the involuntary patient. and that on the facts of this

case there has been no waiver of such right.

To support its waiver theory, the Commonwealth

cites the Massachusetts case of Belger v. Arnot, 344 Mass.

679, 183 N. E. 2d 866 (1962). In Belger, plaintiff claimed

that certain involuntary electroshock treatm ents she

A patient's commitment status may be changed from

voluntary to involuntary upon proper notice and hearing.

See discussion of commitment procedures, Sec. V supra.

95a

received while hospitalized, pursuant to a temporary ten

day admission, amounted to a battery. While there is

language in the opinion which suggested that defendants

were not liable because plaintiff had assented to all

subsequent treatment, that case is inapposite to the one at

bar.

First, the general issue before the Belger court was

one of liability in tort, not the issuance of an injection to

protect constitutional rights. Second, the language here

constituting application for voluntary commitment is

neither a clear consent to be treated or a knowing

voluntary waiver of a constitutional right to refuse

treatment. At best, the language is ambiguous and could

even be interpreted as a mere statement of expectation or

entitlement by the patient.

In order for a court to find a waiver of a right to

refuse, the evidence must be clear that the patient

understood such a right existed and then elected knowingly

and voluntarily to waive such a right.22/ The language

proffered by the defendants contains neither

element.22/ The Commonwealth drafted the language in

re See erally Johnson v. Zerbst, 304 U.S. 458 (1938)

requirem

a person knowingly waive constitutional

rights for waiver to be effective).

33/ See application language, p. 71 supra.

96a

the application and the defendants, as agents of the

Commonwealth, must bear the burden of its

inadequacy.24/

E. The Commonwealth's Interests

The Supreme Court has long recognized that

fundamental rights are not absolute, but may be

subordinated to compelling state interests. Roe v. Wade,

supra, 410 U.S. at 155. The state has no such compelling

interest here. |

Each of us has a basic right to care for our bodies

subject to "reasonable regulations, as the safety of the

general public may demand." Jacobson v. Massachusetts,

197 U.S. Uu, 29 (1905). Here, the states interest in

protecting the safety of the general public is the

justification for commitment of mental patients. After

commitment, the balancing of state versus patients“

interests must be done in the context of the community

setting.

That the state may forcibly medicate a committed

patient given an emergency that threatens the physical

safety of patients and staff — the institutional community

— is not at issue. Such action is necessary to protect the

34/ That the wording of the application was intended to

serve as a waiver is borderline fatuous in view of the

Commonwealth's historic position that no committed

mental patient has a right to refuse treatm ent.

97a

members of that community and is consistent with the

basic rationale relied on in Jacobson. Given a

non-emergency, however, it is an unreasonable invasion of

privacy, and an affront to basic concepts of human dignity,

to permit forced injection of a mind-altering drug into the

buttocks of a competent patient unwilling to give informed

consent. That type of treatment is not necessary to

protect the general public, since the patient has already

been quarantined by commitment. Of course, there being

no emergency, the hospital community is in no danger.

The only purpose, therefore, of forced medication, in

a non-emergency, is to help the patient. The desire to help

the patient is a laudable if not noble goal. But, a basic

premise of the right to privacy is the freedom to decide

whether we want to be helped, or whether we want to be

left alone. It takes a grave set of circumstances to

abrogate that right. That a non-emergency injection in the

buttocks may be therapeutic does not constitute such a

circumstance.

Fourth Amendment cases cited by the defendants to

support a state interest in forced medication are

inapposite.22/ The patients at Boston State are not

subjects of criminal investigation, but are victims of fate

35/ See, e.g., Breithaupt V. Abram, 352 U.S, 432 (1957).

98a

who have been short-changed by life. They have been

isolated to protect the public, even though they are

presumed to be competent to manage their affairs.

There are alternative methods of treating mental

patients, though some may be slower and less effective

than psychotropic medication. As has been noted,

plaintiffs’ primary objection is to the forced injection of

psychotropic medication. Given the alternatives available

in non-emergencies, subjecting a patient to the humiliation

of being disrobed and then injected with drugs powerful

enough to immobilize both body and mind is totally

unreasonable by any standard. Forced injections in

non-emergencies are classic "intrusions which are not

justified in the circumstances." Schmerber v. California,

384 U.S. 757, 768 (1966).

Aside from the proffered state interests in forced

medication, the defendants also resist recognizing a right

to refuse by challenging the efficacy of a regime of

informed consent. The defendants’ crystal ball foretells a

tale of gloom if the standards imposed by this court's

temporary restraining order (TRO) are made permanent.

But, their prediction is not borne out by the experience of

that order. Although Dr. Gill expressed concern as to the

impact of the TRO on effective treatment, he could

identify only 12 patients out of 1,000 who refused their

medication for prolonged periods between May l,

99a

1975 and June 23, 1977 — and most of those changed their

minds within a few days. None of these patients was

transferred to a more secure institutional setting because

of behavior problema.

Should the TRO be made permanent, defendants

foresee institutional settings becoming mere warehouses,

characterized by increases in violence, patient apathy,

length of stays and administrative problems. The evidence

in this case, however, demonstrates that such a gloomy

forecase is more dramatic than factual.

As has been pointed out, the target of plaintiffs' suit

is forced injection of psychotropic medication. Given a

patient's refusal, other traditional means of psychotherapy

and treatment would continue to be available. The fact

36/ In at least one instance of violence by a patient who

refused treatment, Dr. Gill acknowledged at trial that the

signs of likely physical harm, absent forced medication,

were present and the consequences predictable. Forced

medication would, therefore, have been permissible under

the provisions of the TRO. The subsequent violence in that

situation was, therefore, not a function of the TRO, but

was due to the staff's failure to act in accordance with its

professional judgment. Doctors, like judges, are in a

decision making profession. Some decisions are clear and

others less certain. Neither profession has room for those

unwilling or unable to make the tough ones.

100a

that some doctors may feel that the use of psychotropic

drugs is quicker and more effective than other available

treatment does not mean that patients should not be given

the option to follow a more conservative course in a

non-emergency setting. Also to be borne in mind is that

the great majority of patients have not declined their

psychotropic medication during the pendency of the TRO.

Most of those who did changed their minds within a few

days. This speaks well for the confidence in a doctor's

judgment that may be established given the effort to

establish a strong therapeutic alliance.

The First Circuit recognizes an involuntary patient's

right to be secure from the assaults of fellow patients,

' Harper v. Cserr, 544 F. 2d 1121 (Ist Cir. 1976), and the

states power "to establish reasonable involuntary

psychiatric procedures to deal with highly disturbed

persons having manifestly dangerous propensities." Gomes

v. Gaughan, 471 F. 2d 794, 800 (Ist Cir. 1973). Those

propositions are not in dispute here, and this court's TRO in

no way impinged on the state's power to act in such

situations. In this regard, it is significant to recall the

testimony of Dr. Gill to the effect that only 3% to 5% of

the Austin unit's patients engaged in violent behavior, and

only 20 to 25% of that population were even potentially

violent.

10la

In determining whether to order permanent injunctive

relief, the issue before this court is not whether forced

injection of psychotropic medication may be considered

sound medical practice. Plaintiffs' constitutional challenge

raises the issues as to whether a patient may decline

medication even though it may be beneficial, and whether

that declination must be respected by hospital staff.

In an amicus brief, the Massachusetts Psychiatric

Society argues:

If forbidden to use certain standard, effective

modalities, they (hospital staffs) will be

caught in the situation of having a legal

obligation which they cannot carry out.

(Amicus Brief pp. 4-5).

That argument suffers from a faulty premise. The State

has a duty to make treatment available. It has no duty to

impose treatment on a competent involuntary patient who

prefers to refuse medication, regardless of its potential

benefit.

37/ The position of the amicus brief is seemingly at odds

with that of the American Psychiatric Association: "As is

the practice generally in medicine, the patients“ informed

consent for treatment is required except for emergency

situations" American Psychiatric Association Task Force

on Right to Treatment, 134 Am. J. Psych. 3 (March,

1977).

102a

In analyzing defendants' prediction of doom should

the TRO be made permanent, it is helpful to recall the

testimony of the defendants and most of their expert

witnesses, to the effect that they would respect a patient's

preference to refuse treatment, absent an emergency

situation. In other words, although not conceding a

patient's legal right to refuse treatment, the professionals“

practice is to honor the refusal, except in an emergency.

That testimony is inconsistent with any prediction of a

chaotic institutional atmosphere if patients' wishes to

refuse medication are honored. Certainly the expressed

attitude of these interested professionals demonstrates

that respecting and abiding by a competent mental

patient's wishes concerning medication would not

undermine the ethical integrity of the medical profession.

The Commonwealth does have a legitimate interest

in decreasing the number of patients hospitalized, as well

as the length of their stays. One need only to be alive to

be aware that the costs of illness, mental and physical, are

soaring. There may well be additional administrative

expense and burden attached to recognizing a competent

inpatient's right to refuse treatment. Stated another way,

it might be less expensive for the state to deny, rather

than recognize, such a right. But, factors of convenience

and cost have long been regarded as inadequate

103a

justifications, standing alone, for a state's failure to

recognize and respect constitutionally protected rights.

Watson v. City of Memphis, 373 U.S. 526 (1963); Rozecki x.

Gaughan, 459 F 2d 6 (Ist Cir. 1972).

+ One basic theme that seems to thread its way

through most of defendants’ arguments is that a federal

court has no business second-guessing a treatment decision

of a hospital staff person. This contention is like saying

that once there is confinement in prison there can be no

judicial scrutiny as to the conditions of confinement. As

Chief Judge Bazelon of the D.C. Circuit put it:

It makes little sense to guard zealously against

the possibility of unwarranted deprivations

prior to hospitalization, only to abandon the

watch once the patient disappears behind

hospital doors.

Covington v. Harris, 419 F.2d 617, 623-24 (D.C. Cir. 1969).

Professional judgments concerning confined persons,

whether they be made by wardens in prisons or physicians

in hospitals, should always be subject to judicial scrutiny,

given an allegation of constitutional deprivation. Such an

allegation has been made here, and it is well founded.22/

/ The recognition of this right finds support in two

recent cases, Rennie v. Klein, 462 F Supp. 1131 (D.N.J. 1979)

(footnote continued)

104a

The defendants are enjoined from forcibly medicating

committed mental patients, voluntary or involuntary,

except in emergency circumstances in which a failure to do

so would bring about a substantial likelihood of physical

harm to the patient or others. An order will issue.

IX. Seclusion

Seclusion is the isolating of a mental patient in a

small locked room. Plaintiffs contend that committed

mental patients have a constitutionally protected right not

to be secluded, except in emergency situations defined by

M. G. L. A. ch. 123, 521 and related DMH regulations.

23 / (tootnote continued)

(individual action), Rennie v. Klein, Opinion on Plaintif fs“

Motion for a Preliminary on (CA No. 77-2624, Sept.

14, 1979) (class action), and In re Boyd, 403 A. 2d 744 (D.C.

App. 1979). In the Rennie action, the court held that

involuntary mental patients possessed a qualified right to

refuse psychotropic medication, requiring certain due

process guarantees before drugs can be forcibly admini-

stered. Under New Jersey state law, voluntary patients

essed an absolute t to refuse. Opinion on

laintiffs' Motion for a Preliminary Injunction at 21-22. In

In _ re Boxes an incompetent patient refused certain

noness psychotropic durgs on religious grounds. In

reversing the trial court because it did not give sufficient

weight to the patient's religious beliefs, the court

acknowledged the premise that medical treatment may not

be imposed on a competent person who rejects it, absent a

compelling state interest.

105a

Plaintiffs do not contend that seclusion is per se

unconstitutional. They recognize that seclusion is a

legitimate means for meeting emergency situations

threatening the physical well-being of patients and staff.

Their complaint is that seclusion was routinely used by

defendants

in non-emergencies for the purposes of treatment and

punishment. Plaintiffs claim further that seclusion

decisions, both to confine and release, were delegated by

defendants to unauthorized staff personnel.

Defendants concede that M. G. L. A. ch. 123, 521 is the

controlling standard. They deny, however, that seclusion

was used in other than emergency

circumstances and, the therefore, maintain there is no

occasion for this court to grant the requested injunctive

relief.

A. Seclusion Statutes and Regulations

Massachusetts permits the use of seclusion only in

emergency situations "where there is the occurrence of

lor] serious threat of extreme violence, personal injury, or

attempted suicide." DMH Reg. § 223.02; M. G. L. A. ch. 123,

§21. The statute requires that written authorization be

obtained from the hospital superintendent or a designated

physician prior to seclusion. If they should be unavailable,

seclusion may be used, provided that such use is reported

to the superintendent or physician within eight hours. The

106a

authorization form must also be signed by the person

placing the patient in restraint. M.G.L.A. ch. 123, 821

DMH Reg. $223.05.

A seclusion order is limited to eight hours and the

secluded patient is to be visited at least once an hour by

designated ward staff. DMH Reg. 8223.06. The

superintendent or a designa ted physician is to review the

use of seclusion at least once every eight hours and

authorize in writing either its continuation or cessation.

His determinations and reasons therefore are to be

recorded on departmental form A32. DMH Reg. 8223.07.

The case record of a secluded patient is to include the

name of the person authorizing seclusion, the reason for

seclusion, and the time that seclusion commenced and

concluded. DMH Reg. 8223.08. Violations of seclusion

regulations are to be reported to the superintendent within

24 hours. DMH Reg. 8223.09.

On May U, 1978, during the pendency of this suit,

DMH issued a clarification of its seclusion policy. Under

the clarification, emergencies are said to exist when there

is substantial risk, or occurrence, of serious

self-destructive behavior or physical assault. "Substantial

risk" is defined as the serious, imminent threat of bodily

harm combined with the present ability to inflict such

harm. The term "self-destructive behavior" is not limited

to suicide attempt.

107a

Given an emergency situation, the least restrictive

means of restraint is to be used. Behavioral symptoms

clinically relied on as precursors of assaultive or

self-destructive episodes are to be documented, as well as

a description of any less restrictive alternatives that were

utilized before seclusion.

Only the superintendent or a designated physician

may order seclusion. Seclusion orders are valid for no

longer than eight hours. Secluded persons are to be

checked at least every 15 minutes. The staff person

performing the check must indicate the time of his

observation and also initial the appropriate box under the

section marked "Safety Check" on Form A-32-77.

The seclusion order form (DMH A-32-72) requires

that the following information be provided when seclusion

is used: a) the reason for seclusion, b) a description of the

emergency situation, e) the name and signature of the

ordering physician, d) the name and signature of the person

applying the seclusion, e) the commencement and

conclusion time, f) the name of the person removing the

seclusion.

The form also states that anyone ordering or applying

restraints or seclusion must be familiar with the applicable

laws and regulations set forth on the reverse side of the

form. On the other side of the order form is a verbatim

statement of M.G.L.A. ch. 123, §21, a description of

108a

seclusion record-keeping requirements, and a summary of

procedures to be used in handling violations of seclusion

regulations. Also on the back of the order form is a DMH

policy statement that seclusion is to be utilized as a last

resort.

B. Seclusion Facilities at the Austin and May Units

Although they varied somewhat, the seclusion

facilities at the Austin and May Units had comparable

characteristics. They were small rooms, approximately six

by twelve feet, unfurnished except for a mattress and

cover. The floors were bare. There was an overhead

light. Ventilation and heating were erratic, though not

dissimilar from that in the rest of the unit. Temperature

control was a chronic problem. Secluded patients were

disrobed, except for underwear and a hospital gown. Often

patients would remove even these garments.

Each room contained a single window that was locked

and screened. The door contained a small screened window

that permitted a limited view of the interior. Patients

would often relieve themselves in the seclusion room and

so, despite sanitation efforts, strong odors of urine and

feces persisted. The rooms were chronically in need of

repair and cleaning.

While secluded, patients were isolated from outside

contact. They were not permitted to read, write,

109a

have visitors, or participate in any recreational,

therapeutic or educational activity on the ward.

On the basis of the evidence presented, and a view of

the Austin and May Units, this court finds that the

seclusion rooms during most of the relevant period were

dirty, stark, austere and smelly. They were unpleasant

places to be confine’, to say the least. But, even with

their deficiencies, they did not have a dungeon-like

atmosphere that would shock the conscience, thereby

triggering Eighth Amendment considerations of cruel and

unusual punishment. They, at least minimally, met the

requirements of DMH Reg. $223.04(b),22/ and had the

capacity to effectively isolate an out-of-control patient

from other patients and staff, for the protection of all

concerned.

C. Seclusion Practices at the Austin and May Units

Between January l, 1973 and April 25, 1975, seclusion

was routinely used at both the Austin and May Units in a

variety of circumstances that did not constitute an

emergency as defined by M.G.L.A. ¢.123, 521. Moreover,

seclusion was used, during that period, in circumstances

where a less restrictive alternative would have been

adequate to terminate any existing emergency had

39/ "Any space used for seclusion must provide for

complete visual observation of the patient... appropriate

and safe ventilation, heating, light, and access to hygenic

equipment... ." DMH Reg. §223.04(b).

110a

additional staff and resources been available at the

hospital.

Staff doctors commonly authorized the seclusion of

patients "PRN". A doctor's PRN order has the effect of

authorizing seclusion in the discretion of non-physician

staff. Basically, a PRN order permitted staff to seclude

"as necessary", any time of day or night, without having

to consult a physician first. At times the PRN seclusion

orders preceded by as many as 24 hours the incident that

resulted in seclusion. When seclusion was ordered PRN,

patients were not required to be examined psychologically

or physically, either prior or subsequent to the seclusion.

Although the seclusion sheet required that

observations be detailed, usually only a general

description of the emergency requiring seclusion was

given. The form often remained unsigned by a physician

for several weeks after the patient had been secluded.

1. The Austin Unit

Prior to this court's temporary restraining order, the

doctors and staff at the Austin Unit used seclusion to

extinguish bizarre but non-dangerous patient behavior.

Dr. Gill's policy at Austin was to permit seclusion when

he felt it would be useful in the treatment of a patient.

Routinely, he and the Austin staff used seclusion as

negative reinforcement to modify patient behavior they

deemed to be undesirable. An example is the

llla

treatment plan of B. M.“ which included "a behavior

modification program on ward with use of seclusion

privilege for reward/punishment."

After this court's temporary restraining order, Dr.

Gill directed that patients no longer be secluded as part

of treatment plans. This was a change in policy and

practice at the Austin Unit.

2. The May Unit

The May Unit also followed a policy of secluding for

treatment purposes in non-emergency situations. For

example, patient Sam D. was secluded each evening to

prevent him from stealing from other patients. His

evening seclusion was a matter of standing order. Patient

Bunny R. had a treatment plan that required her to be

placed in seclusion for 15 minutes when testy, or if she

poked or pushed someone, although she never hit anyone.

Patient Richard W. was automatically secluded for

escaping. Two patients, Gail J. and Al U., were secluded

for engaging in sexual relations. Patient Everett A. had a

treatment plan calling for seclusion if he escaped, or

would not take medication, or made verbal threats to

staff. Patient Rita F. was secluded for walking nude in

the day hall. Patient Barbara R. was secluded for

refusing to stop talking loudly and saying negative things

about herself. Patient David S. was secluded for

masturbating in the day hall.

112a

Hospital records relating to seclusion of patients at

the Austin and May Units are voluminous, and it would be

impractical to outline them here. It is sufficient to note

this court's finding that the records of Austin and May

demonstrate unequivocally that seclusion was routinely

used in connection with treatment plans to modify

behavior that could not reasonably be considered "a

serious threat of extreme violence, personal injury, or

attempted suicide." M.G.L.A. ¢.123, §21. This court finds,

however, that in those instances of misuse, seclusion was

employed at Austin and May as a treatment modality and

not as punis hm ent.

D. Discussion

Applying the standards of Mathews v. Eldridge, 424

U.S. 319 (1976), defendants claim that their seclusion

practices served to protect the "private interest", 424

U.S. at 335, of the patients of the Austin and May Units.

They take the position that, "[i]t is actually in the

self-interest of the patient to allow staff to protect him

during those times the patient is out of control.. . IT] he

state has a heavy interest in swiftly controlling the

violent or potentially violent patient for his or her

protection and for the protection of the other patients."

(Defendants' Trial Brief, P.62).

113a

But, whatever merit there might otherwise be in

defendants, position, their faulty factual premise makes it

inapposite to the Boston State situation. There were

certainly many instances presented at trial of seclusion

decisions having been made in response to emergency

situations threatening the safety of patients and staff. As

has been pointed out above, however, the great weight of

evidence demonstrates that, prior to this court's

restraining order, seclusion was used routinely as a

treatment modality, and not merely as a procedure for

restraining patients who were out of control. Such a

finding is supported not only by the weight of the

testimony presented, but by the Hospital's records that

were received in evidence.

Defendants ask the court to ignore the clear

message of those records on the grounds that the

references to seclusion as treatment were either mistakes

or misnomers. But, for this court to do so would be to

deny the presumed reliability of "routine, standard, and

unbiased medical reports by physician specialists".

Mathews v. Eldridge, supra, 424 U.S. at 344. Richardson

v. Perales, 402 U.S. 389, 404 (1971). The bulk of these

records were prepared as a matter of hospital routine long

before this litigation commenced. Whatever deficiencies

they may have in terms of clarity and completeness, these

records do serve the purpose of clearly corroborating the

114

testimony of those witnesses who testified that seclusion

was routinely used at Boston State for treatment and not

merely as an emergency restraint.

Plaintiffs have a right to the protections afforded

by the laws and regulations of the Commonwealth, the

constitutionality of which is not in issue. Defendants

have an obligation to provide that protection and,

therefore, are enjoined from applying seclusion to

committed mental patients except in emergency

situations where there is the occurrence or serious threat

of extreme violence, personal injury, or attempted

suicide. The defendants are also enjoined from violating

related Massachusetts law concerning seclusion, including

state statutes and D.M.H. regulations.

In view of the court's holding, it is unnecessary to

reach plaintiff's constitutional claims in considering their

request for injunctive relief against defendants' seclusion

practices. But, it is necessary to decide these

constitutional claims as a prelude to considering

plaintiffs' federal damages claims under 42 U.S.C. §1983.

(Sec. X(b)(1) infra).

Defendants claim that there was no due process

violation here "since procedures had been established in

the Austin and May units to ensure that the seclusion

decision is made only in the patient's best interest.“

(Defendants' Trial Brief, P.64). But, plaintiffs are

1l5a

entitled to greater protection than defendants’ proffered

"best interest" test. Plaintiffs had a right under

Massachusetts statutory law, M.G.L.A. ¢.123, §21, not to

be secluded except in a clearly defined emergency.

Defendants had a corollary responsibility to protect their

patients from a misuse of seclusion.

Defendants' reliance on Meachum v. Fano, 427 U.S.

215 (1976), overlooks the fundamental factual distinction

between that case and this. There, an inmate opposing an

interprison transfer was unsuccessful because

"Massachusetts law conferred no right of the prisoner to

remain in the prison to which he was initially assigned.”

427 U.S. at 226. Here, however, there is a statutory right

not to be secluded except in response to an emergency.

Moreover, the Commonwealth's regulations established

procedures designed to ensure the plaintiffs would receive

the protection afforded them under M. G. L. A. ¢.123, 821.

The indiscriminate use of seclusion PRNs, the failure to

properly fill out seclusion order and observation forms,

and the failure to review incidents of seclusion within

eight hours, were all violations of Massachusetts law. The

court, therefore, holds that the defendants’ actions with

respect to seclusion violated plaintiffs' due process

"liberty interest" under the Fourteenth Amendment.

1l6a

X. NAMED PLAINTIFF'S CLAIMS FOR DAMAGES

In addition to seeking injunctive relief, the named

plaintiffs claim they are each entitled to an award of

damages because of defendants' medication and seclusion

practices. They seek such recovery under a variety of

theories embodying both federal and state causes of

action.

Defendants oppose any award of damages. First,

they deny any lack of due care in their treatment of

plaintiffs. Second, they assert that they acted in good

faith as state employees and, therefore, are immune from

liability.

This court has already determined that, at one time

or another, the defendants countenanced and routinely

implemented policies of forced medication and

involuntary seclusion of patients at Boston State in

non-emergency circumstances when there was no

substantial likelihood of physical harm to patients or

others. Such general findings, though adequate for

injunctive relief, are not sufficient to support individual

damage claims by the named plaintiffs. Rather, it is

necessary that each named plaintiff establish, by a

preponderance of the evidence, that he or she was

damaged because of defendants' impermissible seclusion

117a

or medication practices. And so, prior to analyzing the

merits of plaintiffs' asserted theories of recovery, it is

necessary for this court to make findings as to the factual

bases of their claims.42/

A. Findings of Fact Related to Damages Claim

1. May Unit Plaintiffs

The May Unit plaintiffs are Harold Warner, Able

Bolden, Willie Wadsworth and Rubie Rogers. They claim

that they were involuntarily medicated and secluded in

non-emergency circumstances. First, the court examines

their medication claims.

7 a. Medication

This court finds that only two May Unit plaintiffs —

Rubie Rogers and Willie Wadsworth — were forcibly

medicated in non-emergency circumstances.

Rogers refused medication throughout her

hospitalization. Her refusals were respected only when

she was in "reasonable control". But, the only occasions

in which she was sufficiently out of control to warrant

seclusion occurred in September, 1973 and June, 1974.

Given Rogers' innumerable refusals, the May Unit's policy

40/ With respect to these damages claim, the court

Incorporates by reference all relevant findings and

conclusions made in connection with the claim for

injunctive relief.

9

118a

to forcibly medicate in non-emergencies, and the fact

that she lived on the ward for several months without

seclusion, this court draws the inference, and so finds,

that Rogers was involuntarily medicated in circumstances

that would not constitute an emergency under M.G.L.A.

0. 123, 821.

Wadsworth was secluded for 30 days, commencing in

December of 1974. While secluded, he was forcibly

medicated. Since Wadsworth was already restrained by

seclusion, his refusal to take medication would not have

precipitated an emergency.

The court finds that Bolden and Warner were not

forcibly medicated in non-emergencies. While I. M.

medication was prescribed for Bolden, the court is not

persuaded that these orders were carried out in

non-emergencies. Rather, the evidence supports a finding

that medication was forced on Bolden, if ever, only when

he was acutely psychotic and out of control.

The only evidence that Warner was involuntarily

medicated was through his testimony. The court does not

find that testimony to be credible.

The court is also persuaded that Rogers suffered

some side effects from her medication, including

akathisia and akinesia, terms that have already been

defined. See, Sec. VI supra. Her anti-psychotic

119a

medication was terminated when these side effects were

recognized by staff. 7

d. Seclusion

The evidence demonstrates that three of the named

plaintiffs — Wadsworth, Warner and Bolden — were

impermissibly secluded in non-emergency situations.

Wadsworth, a prior patient, was readmitted to the

May Unit on Christmas Day, 1974, in an acutely psychotic

condition. In addition to punching an attendant in the

chest, Wadsworth rolled a coat hanger around his fist and

threatened to use it if an attempt were made to seclude

him. After being confronted by a number of attendants,

Wadsworth went into seclusion on his own, where he spent

the next 30 days.

During that time, the staff used lithium on him in an

effort to sontrol what they perceived to be his manic

condition, and a number of seclusion programs were

fashioned for him. After the fifth day of seclusion, his

seclusion program permitted four thirty-minute time out

periods per day. On the tenth day of seclusion, that time

out period was increased to one hour. On the sixteenth

day, he was released for one and one-half hours, six times

Rogers also suffered from neutropenia, a serious

condition characterized by a decrease in the white blood

count.

120a

a day, and was permitted to eat in the day hall. By the

twenty-second day, he was permitted to be out of

seclusion for two hours at a time.

There is little question that the first four or five

days of Wadsworth’s seclusion were justified. He was a

relatively big and powerful young man, exhibiting hostile

and assaultive behavior at the time of his admission to the

May Unit. A7

While the initial seclusion was justified, the

twenty-five days of seclusion that followed were not.

Progress notes indicate that, for most of that time,

Wadsworth was in control. 1/0 By the eighth day, the

night staff felt that he no longer needed to be secluded.

Of the approximately two thousand entries on seclusion

room observation sheets, from December 28, 1974 to

January 23, 1975, only six indicated any agitated behavior.

42/ During the first few days of his seclusion, the staff

perceived Wadsworth's potential for violence to be so

great that, instead of taking him out for regular toileting,

they put a bucket in the seclusion room.

43/ After December 27, 1974, at least eleven staff

members, including Wadsworth's administrator and the

head nurse of the ward, described Wadsworth as calm,

cooperative, appropriate, pleasant, and in control during

his remaining seclusion.

12la

Three of these were on December 30, 1974.44/

The fact that Wadsworth'’s treatment program

permitted increasing hours out of seclusion was not a per

se violation of M.. L. A. ¢.123, §21. Observations made

during such "time out" periods may well serve as a

barometer of a patient's ability to handle the stimulus of

the ward. But, this court finds that Wadsworth's

consistent non-violent behavior during time out periods

demonstrated that he did not need to be secluded.42/

Only five seclusion orders were filled out for

Warner. This court finds that the seclusion order of

March 22, 1975, was not prompted by an emergency.

Hospital records for that day indicate that he was

"creating a disturbance on other wards" and that he was

"obnoxious, instigating trouble with patients and staff." Of

The court does not find that the appearance and

havior of a patient while secluded is the sole factor to

be considered in deciding whether a patient may safely

come out of the seclusion room. Such factors, among

others, are relevant to that question, however.

45/ Although defendants dispute that Wadsworth was

mproperly secluded, they concede that his seclusion was

affected by certain "environmental" factors, including

staff short patient load, and the fact that a doctor

had been killed on the ward one year prior. (Defendants'

Proposed Findings of Fact pp.285-287).

122a

significance is that a February 24 entry in the seclusion

order book instructed that Warner be secluded for twelve

hours for being a oudmouth after warnings". The

inference is warranted that the March 22nd seclusion was

for disruptive behavior short of an emergency 22! and

this court so finds,

Able Bolden was secluded approximately,sixty times

between December, 1974 and April, 1975. The bulk of

these seclusions occurred in February and March of 1975,

while he was acutely psychotic and out of controle!

46/ While there was a seclusion order that Warner was to

secluded for twenty-four hours for sexually acting out,

the court is not persuaded that this order was enforced.

The court finds that Warner's seclusion for sexual

behavior on the night of February 20-21, 1975, was valid in

light of his sexual activity on three previous nights with

women of questionable competence to consent.

Massachusetts“ seclusion law permits § seclusion in

emergencies to prevent sexual activity, particularly when

one of the parties has a limited capacity to consent. In

the absence of less restrictive alternatives, the staff

would have a duty to seclude in order to protect that

party from such a sexual intrusion.

47/ Bolden was both assaultive and delusional. His

assaultive behavior included threatening patients and

staff with a knife on several occasions, and initiating

fistfights. He was also sexually assaultive. In his

delusions, he would think he was God or a physician

capable of curing himself and others.

123a

Nonetheless, the court is persuaded that one of Bolden's

seclusions was in violation of M.G.L.A. ¢.123, 821. On

March 4, 1975, Bolden was to be secluded for twenty-four

hours as a result of having sex with another patient. The

Hospital's records indicate that he was taken out of

seclusion for a neurological appointment at Shattuck

Hospital, but was to be secluded again for the balance of

the twenty-four hours after his return. The inference is

warranted that Bolden would not have been taken to a

neurological examination if he were an emergency threat,

and that his seclusion upon return from Shattuck was

unrelated to any emergency. 2%

The court finds that the plaintiff Rogers has not

sustained her burden of proving that any of her seclusions

was in violation of the law.

2. Austin Unit Plaintiffs

Three Austin Unit patients are named plaintiffs in

this suit — Donna Hunt, Elizabeth Bybel and James

Colleran. All have medication and seclusion damages

claims.

a. — Mecication

This court finds that Hunt, Bybel and Colleran were

48/ The court's finding should not be interpreted as a

holding that it is per se impermissible under

Massachusetts law to seclude a patient for sexual

activity. See, note 46 supra.

124a

forcibly medicated in non-emergency situations as part of

a psychotherapeutic program. 70

It is also apparent that Bybel and Hunt suffered side

effects from the medication they received. Bybel

received large dosages of phenothiazines during certain

periods of her hospitalization, particularly in late January

and February of 1974. There was evidence that she

suffered from slow thinking and slurred speech following

that medication. Hunt also experienced certain

extrapyramidal effects from her heavy doses of

medication, including akinesia. While one Austin Unit

doctor felt that Hunt exhibited early signs of tardive

dyskinesia, this court is not persuaded that she ever

contracted the disease.

49/ James Colleran's receipt of intramuscular medication

(Thorazine) was documented in the record. Bybel and

Hunt would generally accept their medication after being

threatened with an injection by needle.

Chris Demers, who ran a special program for the

retarded in the Austin Unit, testified that Hunt was

involuntarily medicated in non-emergencies at least

twenty-five times in 1975, ten times prior to the filing of

this lawsuit. On the occasions when Hunt was refusing

medication she would generally be outwardly calm,

talking to other patients or walking around by herself.

Elizabeth Franceen, a nurse attendant at the Austin Unit,

testified that Bybel would refuse her anti-psychotic

medication about 80% of the time. According to

Franceen, Bybel may have been defiant about refusing her

medication, but did not act in any kind of exaggerated or

outrageous way.

125a

b. Seclusion

Perhaps the most contested issue in this case

concerns the seclusion programs that were instituted for

Donna Hunt. At the time of her admission to the Austin

Unit on January 15, 1975, Hunt was a fifteen-year old

moderately retarded adolescent. Like her two Austin

Unit co-plaintiffs, she had a capacity for violence and

out-of-control dehavior. 2 In an effort to control that

behavior, the staff decided to seclude her. During the

next fifteen months, she was secluded for more than 1800

hours.

During Hunt's first six weeks of hospitalization, she

was slowed down by her body cast and physical illness.

When the cast was removed, her behavior became

50/ On November 12, 1973, Hunt was treated at Boston

City Hospital for compression fractures after jumping

from the second story of her home following an argument

with her brother. She was discharged in a full body cast

on November 30. On January 6, 1974, she was readmitted

to the BCH for a seizure work-up and for evaluation after

allegedly threatening her mother with a knife and

throwing her across a room. During the second admission,

Hunt's behavior became increasingly out of control, to the

point where she attempted to strangle one of the

hospital's social workers. While the hospital attempted to

place Hunt in an adolescent facility, all efforts proved

futile. She was considered too smart, too retarded, or too

violent for any such placement. She was sent to the

Austin Unit as a last alternative.

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127a

As of July, 1974, a new program was instituted

whereby Hunt was re

This text is long and has been trimmed here. Open the source document for the complete record.