Opposition — Mills v. Rogers

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89-1417 | yay 290

ALEXANDER L. ST VAS,

Ci dat

No.

OCTOBER TERM, 1980

SUPREME COURT OF THE UNITED STATES

ROBERT OKIN, MICHAEL GILL AND

WILLIAM MALAMUD,

Petitioners,

RUBIE ROGERS, ABLE BOLDEN, BETTY BYBEL,

JAMES COLLERAN, DONNA HUNT,

WILLIE WADSWORTH, AND HAROLD WARNER,

Respondents.

OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF

APPEALS FOR THE FIRST CIRCUIT

Ernest Winsor

2 Park Square

Boston, Massachusetts

Telephone: (617) 482-0890

QUESTIONS PRESENTED

1. Whether involuntarily committed

mental patients, who have not been ad-

judicated incompetent nor deemed in-

capable of managing their affairs, have any

Constitutional right to refuse powerful

mind and mood altering anti-psychotic

drugs which also cause a considerable

percentage of patients to suffer painful

and permanent physical, intellectual,

emotional and psychological adverse

effects.

y Since the Massachusetts Supreme

Judicial Court, in a pending case, may

obviate the need for this Court to rule

on the Constitutional issues presented

in the case at bar, whether, as a

matter of federalism, this Court should

refuse to grant certiorari.

3. Since the specific stan-

dards and procedures for the right to

refuse will not be set out until the

District Court issues a decision pur-

suant to the Court of Appeals remand

order, and because few federal courts

have decided the issues presented in

this case, whether it is premature for

this Court to grant certiorari.

oie

TABLE OF CONTENTS

Page

TABLE OF CONTENTS i

TABLE OF AUTHORITIES iv

CONSTITUTIONAL PROVISIONS,

STATUTORY PROVISIONS AND

REGULATIONS viii

QUESTIONS PRESENTED 1

STATEMENT OF THE CASE 2

ARGUMENT 13

I. EVEN THOUGH AN INVOLUNTARILY

COMMITTED MENTAL PATIENT'S CON-

STITUTIONAL RIGHT TO REFUSE

TREATMENT RAISES IMPORTANT

QUESTIONS, IS IT PREMATURE FOR

THIS COURT TO DECIDE THE ISSUES

PRESENTED IN THE CASE AT THIS

‘TIME

A. This Court Should Await The

Results Of The Remand Order

To The District Court And Its

Review By The First Circuit

Court of Appeals Before

Granting Certiorari 15

B. The Massachusetts Supreme

Judicial Court Has A Pending

Case Which May Obviate The

Need For This Court To Reach

Many Of The Constitutional

Questions And Issues Presen-

ted In This Case 20

II.

Ift.

Page

C. The Federal Courts Have Not

Had An Adequate Opportunity

To Evaluate And Analyze The

Issues And Facts Presented

In Right To Refuse Treat-

ment Cases 22

THERE IS NO CONFLICT BETWEEN

FEDERAL COURTS, OR BETWEEN

THE FIRST CIRCUIT AND ANY

STATE COURT 24

THE COURT OF APPEALS AND

DISTRICT COURT'S HOLDINGS

WERE CORRECT 26

A. The Doctors Argument That

Patients Do Not Have A

Constitutional Right To

Refuse Treatment Is With-

out Merit 27

B. The Doctors Argument That

Involuntarily Committed Pa-

tients Do Not Have A Consti-

tutional Right To Be Treated

In The Least Restrictive

Manner Is Unsupportable 31

C. The Doctors Argument That It

Should Not Be Necessary To

Require A Patient To Be Ju-

dicially Declared Incompetent

Before They May Be Permitted

To Forcibly Medicate Involun-

tarily Committed Patients

Since Their Commitment Consti-

tutes A Finding Of Incompe-

tence, Is Inconsistent With

Massachusetts Law 32

~iii-

Page

IV. GENERAL IMPORTANCE OF THE

CASE 34

A. The Issues Presented In

The Case 34

Vv. THE PRINCIPLES OF FEDERALISM

ARE NOT VIOLATED BY THE COURT

OF APPEALS' REMAND ORDER TO

THE DISTRICT COURT 48

CONCLUSION 52

TABLE OF AUTHORITIES

Cases Page

Boyd v. Board of Registrars

re) chertown, Mass. 681,

334 N.E. 2d 629 (1975) 33

Bell v. Wayne County General

ospital at Eloise, - Supp.

ULLP (E.D. Mich. 1974) 29

Spee v. § ce, 464 F. 2d

D.C. Bo ) cert. denies

409 U.S. 1064, 93 S. Ct.

L. Ed. 2d 518 (1972) 28

Cleveland Board of Education v.

eur, U. e CB.

791, 39 L. Ed. 24 52 (1974) 32

Covington v. Harris, 419 F. 2d

D.C. Cir. ) 32

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

D.C.N. o, Sept. 30,

1980) 23,29,40

Doe v. Doe, 1979 Mass. Adv. Sh.

343, 365 N.E. 2a 995 (1979) 34

Dunham v. Wright, 423 F. 2d 940,

(3rd Cir. 1576) 28

Fazio v. Fazio, 378 N.E. 2d

ss. 8) 33

Goedecke v. State of Colorado

Department of Institutions,

e olo Sup.

1979) 29,40

~-Vv—-

Cases

In Matter of B., 156 N.J. Super.

1977)

In re Boyd, 403 A. 2d 744,

A. 760 (Sup. Ct. N.J.

Page

26,41

t. App. 1979) 29,33,41

In re Cleo bunequist No. 140151

ay Cty. nn. Prob. Ct.,

April 30, 1976)

In re Guardianship of Richard

Roe, No. 225? (Mass. October 8,

T580)

In re K.K.B., 609 P. 2d 747

up. Ct. 1980)

In the Matter of are Mass.

Ve * Mass.

May 1980)

In the Matter of the Alleged

Iliness of Paul Fussa (Docket

No. 469 Minn. Sup. Ct

oO. nn. Sup. Ct. June 14,

1976) :

Kaimowitz v. Michigan Department

of Mental Health, oe 73, 19434

AW, 42 U.S.L.W. 2063, 2 Prison

Law Rptr. 433 (Mich. Cir. Ct.

Wayne City, Mich. July 10, 1973)

yeagate v. Clark, 111 Mass. 308

Lynch v. Baxley, 386 F. Supp.

Me a. 1974)

Mackey v. Procunier, 477 F. 2a

fe r. )

26,41

14,20

29,40

29,31

-vi-

Cases Page

McAuliffe v. Carlson, 377

upp. D. Conn. 1974) 33

Memorial Hospital v. Maricopa

ount ’ U. . ° Ct.

, 39 L. Ed. 24 306 (1974) 32

Moos v. U.S., 225 F. 2d 705

75) 28

New York Health and Hospital

- V. Stein, d

TEL 70 Misc. 2d 944 (Sup. ct.

N.¥. 1973) 29

Nolan v. Fitzpatrick, 451 F. 2d

545 (ist Cir. 1971) 32

Parham v. J.R., 442 U.S. 584, 99

e Cb. , 61 L. Ed. 2d 101

(1979) 50,51

Price v. Shephard, 307 Minn.

250, 239 N.W. 2d 905, (1976) 24,32

Rennie v. Klein, 462 F. Supp.

78) and 476 F.

Supp. 1294 (D. N.J. 1979) 23,29,33,40,42

Rizzo v. Goode, 423 U.S. 362,

t. ,» 46 L. Ed. 2d

561 (1976) 48,49

Scott v. Plante, 532 F. 2d

r r. 1973) 29,31

Shelton v. Tucker, 364 U.S.

P S. Ct. 7, 3. Ba.

2a 231 (1960) 32

-vii-

Cases

Superintendent of Belchertown v.

ew CZ, ss. ’

N.E. 20 417 (1977)

Vecchione v. Wohlgemuth, 377

F. Supp. 1361 (E.D. Pa. 1974)

wetsch v. Likins, 373 F. Supp.

e nn. 74)

White v. Davis, 13 Ca. 3rd 757,

, 120 Cal. Rptr.

94 (1975)

Winters v. Millers, 446 F. 2d

n r. , cert denied

404 U.S. 985 (1971)

Articles and Books

Crane, "Two Decades of Psycho-

phamacology and Community Mental

Health,” Trans. of N.Y. Acad. Sc

Series II, Vol. 36 (1974)

"Developments, Civil Commitment,

87 Harv. L. Rev. 1190 (1974)

30,34

23,29,33

-viii-

CONSTITUTIONAL PROVISIONS, STATUTORY

PROVISIONS AND REGULATIONS

pnited States Constitution, First

n nt

United States Constitution, Amendment

ourteen, Section

Massachusetts General Laws c. 123, §25

Massachusetts Department of Mental

ea n Rec . aa

@je

QUESTIONS PRESENTED

lL. Whether involuntarily committed

mental patients, who have not been ad-

judicated incompetent nor deemed in-

cable of managing their affairs, have any

Constitutional right to refuse powerful

mind and mood altering anti-psychotic

drugs which also cause a considerable

percentage of patients to suffer painful

and permanent physical, intellectual,

emotional and psychological adverse

effects.

2. Since the Massachusetts Supreme

Judicial Court, in a pending case, may

obviate the need for this Court to rule

on the Constitutional issues presented

in the case at bar, whether, as a

matter of federalism, this Court should

refuse to grant certiorari.

3. Since the specific stan-

dards and procedures for the right to

refuse will not be set out until the

District Court issues a decision pur-

suant to the Court of Appeals remand

order, and because few federal courts

have decided the issues presented in

this case, whether it is premature for

this Court to grant certiorari.

STATEMENT OF THE CASE

On April 27, 1975, seven patients

at the May and Austin Units of Boston

State Hospital filed a civil rights

class action, under 42 U.S.C. 1983, in

the United States District Court of

Massachusetts. The patients sought to

restrain the defendant-doctors' prac-

tice of involuntarily secluding and

Grugging both voluntary and involun-

tarily committed inpatients in their

Units of Boston State Hospital in

non-emergencies. The plaintiffs also

sought to recover compensatory damages

from those responsible for that treat-

ment. (App. at p. 45a,48a).

On April 30, 1975 a temporary

restraining order (T.R.O.) was granted

pending a hearing on whether a prelim-

inary injunction should issue, scheduled

for May 8, 1975. On May 8th, the

attorneys for the doctors appeared

before the District Court and formally

assented to an extention of the T.R.O.

"until a hearing on the preliminary or

permanent injunction". (App. at p. 48a-

49a).

A merged trial on injunctive,

liability and damage issues began on

December 8, 1977 and concluded on

January 31, 1979, involving seventy-two

days of trial, more than 8000 pages of

transcripts, fifty witnesses,most of then

psychologists, psychiatrists and other

professionals, and over 2,300 pages of

post-trial briefs. (App. at p. 48a-50a)

On October 29, 1979, the District Court

issued an order and decision granting

the patients’ requested injunctive relief

on both their medication and seclusion

Claims while denying the patients’

damage claims. The District Court's

permanent order stated, in relevant part

"that the defendants, their agents and

employees, are restrained from forcibly

medicating the plaintiffs and all other

patients of the Austin and May units,

and successor units, of the Boston State

Hospital without the patient's consent

or the consent of the patient's guardian,

if any, except where there is a substan-

tial likelihood of, or a result of,

extreme violence, personal injury or

attempted suicide.” (App. at p. 162a-

163a).

Prior to the issuance of the April

30, 1975 temporary restraining order,

the practice of the hospital units in,

question was to forcibly medicate both

voluntary and involuntarily committed

patients who refused to take prescribed

anti-psychotic drugs in non-emergencies.

(App. at p. 45a) If necessary the

patient would be physically restrained,

have his/her pants removed, and be injec-

ted with an anti-psychotic drug with

a hypodermic needle in the buttocks, at

times in full view of other patients,

or staff of the opposite sex. (App. at

p. 96a-98a) (Finding No. 248).

The defendants~doctors did not

appeal the seclusion injunctive portion

of the District Court order. (App. at

p. 33a) They did appeal the medication

injunctive portion of the District

Court's decision to the United States

Court of Appeals for the First Circuit.

On November 25, 1980 the Court of

@6-

Appeals issued a unanimous decision,

substantially affirming the District

Court's injunctive order but modifying

certain aspects of the District Court's

decision. (App. at p. 3a)

The defendant-doctors only seek

certiorari from the Court of Appeals’

decision as it applies to involuntarily

committed patients. They do not appeal

the order and judgment as it concerns

voluntarily admitted patients.

1, BOTH THE DISTRICT COURT AND THE

COURT OF APPEALS FOUND THAT THERE IS

A CONSTITUTIONAL BASIS FOR THE RIGHT

TO REFUSE.

Both the District Court and the

Court of Appeals agreed that a patient

has a substantial interest in refusing

anti-psychotic drug treatment. The

District Court relied on both the

Constitutional right to privacy and the

First Amendment for its ruling. (App. at

p. 87a-92a).

~~ =

The District Court's holding that

the First Amendment was violated was

based on its findings that anti-psycho-

tic drugs not only have “the potential

to affect and change a patient's moods,

attitude and capacity to think” but

that these drugs are "powerful enough to

immobilize both body and mind..."

(App. at p. 69a,87a,90a,98a)

The Court of Appeals substantially

adopted the District Court's reasoning

by declaring that it is an "[i]ntuitive-

ly obvious proposition” that a person

has a “constitutionally protected in-

terest in being left free by the state

to decide for himself whether to submit

to this serious and potentially harmful

medical treatment that is represented

by the administration of anti-psychotic

drugs." (App. at p. 4a) The Court

based its ruling on the penumbra of the due

process clause of tiie Fourteenth

Amendment, which protects each citizen's

right to privacy, bodily integrity, and

personal security. (App. at p. 5a)

The Court of Appeals adopted the

District Court's findings as to the

potentially harmful effects of anti-

psychotic drugs, including their ability

to “immobilize both the body and mind"

but felt it. unnecessary to rely on the

First Amendment for its decision. (App.

at p. 4a,5a,17a,27a)

2. STATE INTERESTS IN FORCED MEDICA-

TION

a. The Power to Forcibly Medicate

Under the Police Power

The District Court held that a

doctor, in his or her professional judg-

ment, had the authority to forcibly

medicate a patient in an "emergency

situation in which a failure to do so

would result in a substantial likelihood

of physical harm to the patient, other

patients, or to staff members of the

_institution." (App. at p. 85a) 3

The District Court found that the

doctors’ claims of increased violence

under its emergency standard, since the

T.R.O. was issued, were "more dramatic

than factual.” (App. at p. 99a). The

Court of Appeals agreed that the rela-

tionship of increased violence to the

Court's 1975 order was substantially

exaggerated by the doctors. (App. at p.

9a) Yet it asserted that because of

the unpredictability of some patients’

potential for violence, and the substan-

tial state interest in protecting all

patients from harm in an institution,

the “clear cut unitary standard of

quantitative likelihood that violence

would occur if no medication is admin-

istered" was inappropriate, because it

lacked sufficient flexibility. (App.

at p. 9a-l15a) In recognition of both

-10-

the strong state and patient interest

involved in the decision of whether or

not to use forced medication to prevent

violence, the Court of Appeals held

that a doctor may only administer anti-

psychotic drugs under the police power

as a

result of a determination that the

need to prevent violence in a

particular situation outweighs the

possibility of harm to the medi-

cated individual... .Additionally

reasonable alternatives to the

administration of anti-psychotic

drugs must be ruled out...

(App. at p. l4a)

b. The Power to Forcibly Medicate

Under the Parens Patriae Power

The defendants asserted that court

commitment under Massachusetts law

constituted the determination of inca-

pacity necessary for the state to

provide treatment over the objections

of patients. (App. at p. 18a) The

District Court and Court of Appeals

rejected this argument, finding that

-ll-

Massachusetts statutory law and judicial

precedent clearly contradicted the

defendants’ assertions. The District

Court and Court of Appeals held that to

treat under the parens patriae power,

an involuntary patient had to be :

specifically adjudicated incompetent by

aocourt. (App. at p. 16a-26a,73a~-75a)

The Court of Appeals did express

concern that there may be circumstances

in which the doctors can not obtain an

adjudication of incompetency fast

enough so that during the period of

delay in judicial action the failure to

medicate would cause the patient to

significantly deteriorate. In those

limited situations the Court authorized

forced medication to the extent and

type necessary to prevent significant

deterioration during the delay. The

Court also ordered that a procedure be

created that allowed for a temporary

decision whether a patient is incom-

petent until the state court rules on

the issue. (App. at p. 24a-26a)

c. The Court of Appeals Order

The Court of Appeals remanded the

case to the District Court to develop

workable, Constitutionally valid pro-

cedural safeguards for patients' rights

as well as to provide more specificity

to the standards for forced medication

set out by the Court of Appeals. (App.

at p. 38a).

On December 18, 1980 the District

Court set an expedited schedule to com-

ply with the Court of Appeals’ remand

order. At the hearing the defendant-

doctors argued that the District Court

order was totally vacated, which would

leave patients without any protection pending

a new decision by the District Court.

(App. at p. 167a-180a). The District

-13-

Court read the Court of Appeals’ decision

to mean that as long as the term ‘sub-

stantial likelihood'in its order was

not used to mean a probability, the

language “substantial likelihood" was

not inconsistent with the Court of

Appeals decision. (App. at p. 178a)

The doctors filed a Motion to Clarify

its order in the Court of Appeals in

order to have the District Court's interim

order vacated. The Court of Appeals

refused to grant the motion citing to

the District Court's expedited schedule

for briefs and proposals. (App. at p.

164a-165a)

ARGUMENT

I. EVEN THOUGH AN INVOLUNTARILY COMMIT-

TED MENTAL PATIENT'S CONSTITUTIONAL

‘RIGHT TO REFUSE TREATMENT RAISES

IMPORTANT QUESTIONS, IT IS PRE-

MATURE FOR THIS COURT TO DECIDE THE

ISSUES PRESENTED IN THE CASE AT

THIS TIME.

The patients agree that because

-14-

this case raises important issues,at

‘eome point this Court should grant cert-

iorari. However, the patients maintain

that there are three significant reasons

why it is premature for this Court to

grant certiorari at this time.

The Court of Appeals remanded to

the District Court a number of substan-

tial issues which need to be resolved

before this court can be fully and

adequately presented all the issues pre-

sented by this case. This Court should

wait until this case's posture is more

amenable to review.

The Massachusetts Supreme

Judicial Court has pending a case titled

In Re Guardianship of Richard Roe, No.

2257 (Argued October 8, 1980) which may

obviate the need for this court to reach

the Constitutional questions presented in

the case at bar. As a matter of federal-

ism this Court should deny the doctors'

petition for certiorari.

The federal courts have not had

an adequate opportunity to evaluateand to

analyze the issues and facts presented

in ‘right to refuse treatment' cases.

This Court should await further develop-

ment of the difficult and complex issues

presented by this case by the federal

courts.

A. This Court Should Await the Results

of the Remand Order to the District

Court and its Review by the First

Circuit Court of Appeals Before

Granting Certiorari.

The Court of Appeals order set out

only the general standards and parameters

for involuntary patients’ right to refuse

anti-psychotic drugs but failed to address

a number of important issues.

1. The Court of Appeals Remanded To

The District Court To Determine

What Less Restrictive Means Are

Normally Available To The Hospital

To Prevent Violence To

Avoid The Necessity of Forcibly

Administering Antipsychotic Drugs.

=16=

Based on the Court of Appeals'deci-

sion, the District Court, relying @ the

evidence presented below was ordered to:

1) Prepare a list of alternatives to the

forced administration of anti-psychotic

drugs which are reasonably available to

prevent violence and are generally

available to do this; and 2) Develop a

feasible procedure for insuring that

such alternatives are adequately con-

sidered and rejected before forced

medication is resorted to; and 3) Decide

what kinds of documentation must be kept

to insure that the proper considerations

are made and can be effectively reviewed

by impartial doctors, guardians or

courts later. (App. at p. l4a-l5a).

2. The Court of Appeals Remanded the

Issue of What Procedures Would

Insure That The Doctors Adequately

Take Into Consideration The Inte-

rests of the Patients When Deter-

mining if the Need to Prevent

Violence in a Particular Situation

Outweighs the Possibility of Harm

to the Medicated Individual From

Taking the Drug.

@17-

The District Court, based on the

evidence submitted, was ordered to: 1)

Determine what specific factors must be

considered in the balancing test under

the police power; 2) Decide what kinds of

documentation must be kept to insure that

the proper considerations are made, and

can be effectively reviewed by impartial

doctors, guardians, or courts later; 3)

Determine what kind of in-house periodic

review must be made to insure patients'

interests are protected and to prevent

abuse or neglect by front line personnel;

and 4) Decide what independent review

procedures are to be followed consistent

with due process to review the qualified

physician's decisions to medicate the

patient under the police power because

of the risk of violence. (App. at p. lda-

15a)

-18-

3. The Court of Appeals Remanded the

Issues Relating to What Procedures

May be Used for Making Quick,

Temporary Incompetency Determin-

ations Where There is an Immediate

Risk of Significant Deterioration

to the Patient During the Delay

Between the Time the Doctor

Decides That the Patient is

Incompetent and Seeks an Adju-

dication of Incompetence and

When He is Able to Get a Judicial

Ruling on the Issue of the

Patient's Competency.

The District Court. was also ordered

by the Court of Appeals to: 1) Design a

practical procedure fast enough to deal

with the occasional situation where any

delay in medicating would cause signifi-

cant deterioration in the patient, but

fair enough to insure a truly impartial

determination of incompetency by an

individual(s) with the knowledge of the

legal standards of incompetency; 2)

Develop a documentation requirement to

insure that proper factual and legal

factors are considered in determining

incompetency; 3) Develop a review

procedure both to evaluate the temporary

ruling and to insure that only the amount

and type of medication necessary to

prevent significant deterioration is in-

voluntarily given pending the state court's

decision on incompetency. (App. at p.

26a-30a).

4. The Court of Appeals Remanded The

Issues Relating to What Proce-

dural Safeguards May Insure The

Rights of a Patient Adjudicated

Incompetent to be Involuntarily

Medicated With Anti:- psychotic

Drugs Only in the Circumstances

Allowed by Law.

The District Court was ordered to:

1) Determine who should apply the substi-

tuted judgment test once a patient is

declared incompetent by a court; 2)

Design procedures for the review by non-

treating independent physicians of the

full treatment history of the patients

declared incompetent to insure that the

decision-maker is in fact attempting to

make treatment decisions as the patients

themselves would were they competent;

and 3) Develop documentation requirements

to insure that the proper factual and

legal considerations are given to the

issue of "substituted judgment". (App.

at p. 27a-30a).

B. The Massachusetts Supreme Judicial

Court Has A Pending Case Which May

Obviate The Need For This Court To

Reach Many Of The Constitutional

Questions And Issues Presented In

This Case.

The Massachusetts Supreme Judicial

Court has pending before it a case which

may obviate the need for this court to

reach the Constitutional questions pre-

sented in the case at bar. This case is

titled In Re Guardianship of Richard Roe

No. 2257, and was argued before the

Court on October 8, 1980.2

@2l-

In that case the Massachusetts Supreme

Judicial Court was presented with a

number of similar issues to the issues

presented in the case at bar including

whether under state law the trial court

Was correct in requiring an incompetency

hearing before Richard Roe could be

considered incompetent to make treatment

decisions, and whether the trial court

was correct in appointing a guardian

when it found Richard Roe to be unable to

properly manage his affairs. The Court

also was asked to determine whether a

competent person has the right to refuse

drugs, whether a person declared incom-

petent by a court has the right to refuse

anti-psychotic drugs and whether the trial

court was required to adopt a substituted

judgment test rather than a best interest

test to determine if it was to approve

the administration of anti-psychotic drugs

to Richard Roe.

The fact that the issues raised in

this petition for certiorari may be

resolved under Massachusetts state law,

considered in conjunction with the fact

that the Court of Appeals remanded this

case to the District Court to resolve a

number of the complex issues in this

case, militates against this Court

granting certiorari. However, even if

the Supreme Court is disposed to grant

certiorari, this Court, based on feder-

alism principles, should await the

Massachusetts Supreme Judicial Court's

decision before determining whether to

grant certiorari.

C. The Federal Courts Have Not Had

An Adequate Opportunity To Eval-

uate And To Analyze The Issues And

Facts Presented In Right To

Refuse Treatment Cases.

As of this date few federal courts

have directly and thoroughly addressed

the central issues presented in the case

at bar. Of those cases only one has

been thoroughly reviewed by a Circuit

Court of Appeals; the First Circuit in

the case at bar. It should be noted

that the Second Circuit in 1971 ruled in

a case involving a Christian Scientist's

Claim that she had a right to refuse

treatment based solely on religious

grounds. The Court of Appeals found such

a right. The Supreme Court refused to

grant certiorari in that case. Winters v.

Millers, 446 F. 2d 65 (2nd Cir. 1971), certs

denied 404 U.S. 985 (1971). Only two

other District Courts have been presented

with the same issues as the case at bar

and ruled after trials on the merits.

Both cases found that there was a Consti-

tutional right to refuse treatment.

Rennie v. Klein, 462 F. Supp. 1131 (D.N.

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

1979); Davis v. Hubbard, 49 U.S.L.W. 2215

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

Before this Court reviews and rules

upon the complex and difficult issues

presented in the case at bar it should

await further evaluation and analysis by

the federal courts of the claims and

issues raised by this case.

Il.

THERE IS NO CONFLICT BETWEEN FEDERAL

COURTS, OR BETWEEN THE FIRST CIRCUIT

AND ANY STATE COURT.

The defendants cite to two Minnesota

Supreme Court cases as a ground for

issuing certiorari, arguing that as a

result of those decisions there is a

direct conflict between a state court

and a federal court. In the casescited

to, Price v. Shephard, 307 Minn. 250,

239 N.W. 2d 905, 911 (1976) and its

progeny,In the Matter of the Alleged

Illness of Paul Fussa (Docket No. 469

Minn. Sup. Ct. June 14, 1976) the

Minnesota Supreme Court ruled that in

order to involuntarily administer

intrusive forms of treatment such as

psychosurgery and electroshock on commit-

ted patients Minnesota law would require

an adversary court proceeding to deter-

mine if treatment is to be authorized.

The Minnesota court stated that in making

individual determinations the court

should balance the patient's need for

treatment against the intrusiveness and

potential risk of the prescribed treat-

ment.

The Minnesota Supreme Court, as did the

lower District Court and Court of Appeals

inthe case at bar, recognized that

patients have a fundamental Constitutional

right to privacy that can only be over-

come by legitimate, important state

interests and when overridden must be

done in the least intrusive manner.

However, the Minnesota Supreme Court

held that the involuntary administration

of anti-psychotic drugs may not be

-26=

refused by a patient and need not be

authorized by a court. The Court pri-

marily based this holding on its inter-

pretation of Minnesota law; that all

committed patients have been adjudicated

incompetent and are unable to rationally

make treatment decisions. This holding

is totally inconsistent with Massachu-

setts statutory and case law and the

findings of the District Court regarding

patients’ competency. (App. at p. 73a-

75a). That court, contrary to the case

at bar, and all other cases reviewing

the effects of anti-psychotics ruled

that the drugs were not intrusive. At

best this constitues a conflict of fact

finding, not law. See In re Cleo Lund-

quist, No. 140151 (Ramsay Cty. Minn. Prob.

Ct., April 30, 1976), cited in In Matter of B.,

156 N.J. Super. 231, 383 A. 2d 760, 762(N.J.1977).

III. THE COURT OF APPEALS AND DISTRICT COURT

HOLDINGS WERE CORRECT.

-27<-

A. The Doctors’ Argument That Patients Do Not

Have a Constitutional Right To Refuse Treat-

ment Is Without Merit.

The doctors argue that there is no

Constitutional and common law basis for

the right to refuse treatment for invol-

untarily committed patients. In effect,

the doctors seek this Court to declare

that traditional common law and Consti-

tutional principles: are inapplicable to

hospitalized patients who are not adju-

dicated incompetent. This position

ignores the long standing common law

and Constitutional underpinnings of our

Constitutional system.

The fundamental right to the invio-

lability of every individual's mental

and bodily processes forms not only the

nucleus of the First Amendment, but has

also seen development through the right

to privacy doctrine which finds its

basis from both Constitutional and common

law principles.

-28-

It is a well-established and funda-

mental principle of law in this country

that individuals have the right to

choose between accepting or rejecting

medical treatment recommended to them by

a physician. Moos v. U.S., 225 F. 2d

705, 706 (8th Cir. 1975); "“Developments-

Civil Commitment", 87 Harv. L. Rev.1190,

p. 1194-1196 n. 10, 12; Canterbury v. Spence,

464 F. 2d 772, 780 (D.C. Cir. 1972) cert.

denied 409 U.S. 1064, 93 S. Ct. 560, 34

L. Ed.2d 518 (1972). See Dunham v. Wright,

423 F. 2d 940, 943-944 n.6 (3rd Cir. 1970).

In addition to the District Court

and Court of Appeals in the case at bar

a number of federal and state courts

have found that the Constitutional right

to privacy and freedom of expression

must include protection of mental pa-

tients’ personal autonomy and their

right to self-determination. The right

to privacy would be eviscerated if it

-29-

did not preclude interference with

patients' right of self-determination,

absent an emergency. Davis v. Hubbard,

supra; Winters v. Miller, supra; Rennie

v. Klein, supra; Scott v. Plante, 532

F. 24 939, 946 (3rd Cir. 1973); Bell v.

Wayne County General Hospital at Eloise,

384 F. Supp. 1085, 1100 (E.D. Mich. 1974);

In re K.K.B., supra; In re Boyd, 403 A.

2d 744, 750 (D.C. Ct. App. 1979);

Kaimowitz v. Michigan Department of

Mental Health, No. 73, 19434 AW, 42

U.S.L.W. 2063, 2 Prison Law Reptr. 433

(Mich. Cir. Ct. Wayne City, Mich. July 10,

1973), Goedecke v. State of Colorado

Department of Institutions, 603 P. 2d 123

(Colo. Sup. Ct. 1979); New York Health and

Hospital Corp. v. Stein, 335 N.Y.S. 2d 461, 70

Misc. 2d 944 (Sup. Ct. N.Y. 1973).

Massachusetts has also recognized the

-30-

doctrine of informed consent in order to

insure the protection of incompetent as

well as competent person's bodily

processes. Superintendent of Belcher-

town v. Saikewicz, 373 Mass. 728, 370

N.E. 2d 417, 424 (1977).

The District Court also held:

The concept of a right of privacy

also embodies First Amendment con-

cerns. It is clear from the evidence

in this case that psychotropic medi-

cation has the potential to affect

and change a patient's mood, atti-

tude and capacity to think....

Whatever powers 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 circumstances warrant-

ing an unsanctioned intrusion on the

integrity of a human being. (App.

at p. 90a-9la)

Privacy of thought is a precondition

and necessary condition of free speech

and communication and thus inseparable

from it. The privacy of mental acts is

thought to have intrinsic value in our

society and is considered to be a found-

ation of our democratic institutions.

See Scott v. Plante, supra at p. 946;

Souder v. McGuire, 423 F. Supp. 830,

832 (M.D. Pa. 1976); Mackey v. Procunier

477 F. 2d 877, 878 (9th Cir. 1973);

Rennie v. Klein, supra 462 F. Supp. at 1144;

White v. Davis 13 Ca. 3rd 757, 774, 533

P. 2d 222, 233, 120 Cal. Rptr. 94, 105

(1975); Kaimowitz v. Michigan Department

of Public Health, supra.

B. The Doctors Argument That Involun-

tarily Committed Patients Do Not

Have A Constitutional Right To Be

Treated In The Least Restrictive

Manner Is Unsupportable.

The due process clause principle of

the least restrictive alternative has

become widely accepted by courts as

part of a state's Constitutional duty

when regulating certain conduct

which involves fundamental rights

=-32-

or Constitutionally protected activity?

Numerous courts have upheld the princi-

ple to be applicabie to hospitalized

mental patients who are civilly committed, in

recognition that civil commitment en-

tails a substantial infringement of

personal liberty?

Cc. The Doctors Argument That It Should

Not Be Necessary To Require A Patient

To Be Judicially Declared Incompetent

Before They May Be Permitted To

Forcibly Medicate Involuntarily Com-

mitted Patients Since Their Commit-

ment Constitutes A Finding Of In-

competence, Is Inconsistent With

Massachusetts Law.

See Memorial tal v. Mari County, 415

U.S. 250, 94S. Ct. 1076, 39 L. = od 6

(1974) (right to travel); Cleveland Board of

Education v. LaFleur, 414 U.S. 632, 94S. Ct.

791, 39 L. Bd. 2d 52 (1974) (the right to pro-

create); Shelton v. Tucker, 364 U.S. 479, 81

S. Ct. 247, 5 L. Bd. 20 231 (1960) (freedom of

association); Nolan v. Fi trick, 451 F. 2d

545, 548 (lst 2 " speech).

See for example i v. Harris, 419 F. 2d

617 (D.C. Cir. 1569); Welsch v. Likins, 373

F. Supp. 487, 502 (D. Minn. 1974); Vv.

, 386 F. Supp. 378, 292 ouD. his 1574).

Price v. Shephard, supra.

=33-

Massachusetts law is clear that

commitment to a hospital or a finding of

mental illness is not an adjudication or

finding that a patient is incompetent,

or that a patient is unable to manage

his own affairs. Fazio v. Fazio, 378

N.E. 2d 951 (1978); Boyd v. Board of

Registrars of Belchertown, 368 Mass.

681, 334 N.E. 2d 629 (1975); Leggate v.

Clark, 111 Mass. 308 (1873); M.G.L. c.

123, §25; D.M.H. Reg. 221.02 (App. at

p. 66a). The District Court and Court

of Appeals were correct in their inter-

pretation of Massachusetts law. (App.

at p. 2la-23a, 73a-75a, 78a). Other

jurisdictions share this position. In

re Boyd, supra 403 A. 2d at 747, n.5;

Vecchione v. Wohlgemuth, 377 F. Supp. 1361,

(E.D. Pa. 1974); Rennie v. Klein, supra;

Winters v. Miller, supra, McAuliffe v.

Carlson, 377 F. Supp. 896 (D. Conn. 1974).

-34-

Furthermore the District Court found that

many patients, though committed, were

competent to make their own treatment

decisions and evaluate the risks, bene-

fits and discomforts from receiving anti-

psychotic medication. (App. at p. 74a).

In addition,the doctors ignore the

fact that under Massachusetts law an

incompetent person's articulated pre-

ferences concerning treatment is to be

generally respected as long as the

incompetent person is “able to express

a ‘sensible opinion' as to his desire."

In the Matter of Spring, 1980 Mass. Adv.

Sh. 1209, at 1221 (Mass. May 1980);

Doe v. Doe, 1979 Mass. Adv. Sh. 343, 385

N.E. 2d 995 (1979); Superintendent of

Belchertown v. Saikewicz, supra.

IV. GENERAL IMPORTANCE OF THE CASE

A. The Issues Presented In The Case

As stated previously the patient-

respondents agree that the primary issue

-35-

presented by the case at bar is an

important one which should be reviewed

by this Court when it is presented in a