# Appendix — Mills v. Rogers

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1958%3A02

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1982
- **Citation:** 457 U.S. 291

## Text

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,
cha

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1958%3A02. Public record. Not legal advice.