Amicus Brief — Mills v. Rogers

Office Supreme Court, U.S,

FILED

No. 80-1417 OCT2 1981

ALEXANDER L. STEVAS,

In the Supreme Court— —

OF THE

United States

Ocroser Tann, 1981

Manx Muza, et al.,

Petitioners,

vB.

Rumm Rodnns, et al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the First Circuit

BRIEF FOR BARBARA JAMISON, ET AL.,

PLAINTIFFS IN JAMISON v. FARABEE,

UNITED STATES DISTRICT COURT,

NORTHERN DISTRICT OF CALIFORNIA,

NO. 078 0445 WHO,

AS AMICI CURIAE

Morton P. Conzn Wiis Alsur“

Constitutional Law Clinic Exunw Borozrsen

Golden Gate University Jack W. Lonpew

School of Law Axxx C. Broompan,

536 Mission Street Monntsow & Forrster

San Francisco, CA 94105 One Market Plaza

Telephone : (415) 442-7284 Spear Street Tower

San Francisco, CA 94105

Telephone: (415) 777-6000

*Counsel of Record

BOWNE-PERNAU WALSH © 180 NINTH OT. © 6... CA ©4108 © (418) 864.8800

QUESTIONS PRESENTED

Questions presented by this case and addressed by this

brief are as follows:

1. Whether forcible treatment of an involuntarily com-

mitted mental patient with antipsychotic drugs implicates

a liberty interest created by Massachusetts law and pro-

tected by the Due Process Clause of the Fourteenth

Amendment.

2. Whether an involuntarily committed patient has a

right under the Fourteenth Amendment to refuse state-

ordered treatment with antipsychotic drugs and, if so,

whether Massachusetts has a compelling interest that may,

under its own law, be asserted in favor of such treatment,

absent an emergency.

8. Whether involuntary commitment under Massachu-

setts law is a constitutionally adequate basis for depriving

a mental patient of his fundamental right to refuse treat-

ment with antipsychotic drugs.

Conclusion

TABLE OF CONTENTS

Table of Authorities pa 5 EER Ne ee

Interest of Amici Curiae

Statement of the Case

Summary of Argument

Argument

I. An Involuntarily Committed Patient Has A

Liberty Interest, Rooted In State Law And

Protected By The Due Process Clause, In Being

Free From Forcible Treatment With Antipsy-

chotie Drugs

Under Massachusetts Law, The Substantive

Constitutional Right To Refuse Antipsychotie

Drugs Cannot Be Overridden On The Basis Of

A Refusing Patient’s Best Medical Interests ......

A. Forcible Treatment With Antipsychotic

Drugs Infringes Substantive Rights Under

Fourteenth Amendment That Can Be Over-

ridden Only By A Compelling State In-

terest

B. Massachusetts Does Not Have A Compel-

ling Interest Which May, Under Its Own

Law, Be Asserted In Favor Of Forcible

Treatment With Antipsychotic me Ab-

sent An Emergency

III. Involuntary Commitment Under Massachusetts

Law Does Not Provide A Constitutionally

Adequate Basis For Depriving Patients Of

Their Right To Refuse Forcible Treatment

With Antipsychotic Drugs ;

a, Ww —

10

11

15

111

TABLE OF AUTHORITIES

Cases

Page

Barker v. Wingo, 407 U.S. 514 (1972) 13

Carey v. Population Service International, 431 U.S.

. - 19, 20

Cobbs v. Grant, 8 Cal. 3d 228, 502 P. 2d 1, 104 Cal.

e ... 9

Commissioner of Correction v. Myers, . Mass. ....,

399 N. E. 2d 452 (1979) 18

Doe v. Gallinot, No. 80-5658 (9th Cir. filed Sept. 9,

1981) — — 16

Eisenstadt v. Baird, 405 U.S. 438 (1972 13

Greenholtz v. Inmates of the Nebraska Penal and

Correctional Complex, 422 U.S. 1 (1979) 5,8

Ingraham v. Wright, 430 U.S. 651 (1977) 19, 24

In re Guardianship of Roe, . Mass. , 421 N.E.

2d 40 (1981) 3-8, 10-11, 17-25

Jamison v. Farabee, No. C78 0445 (N.D. Cal., stayed

May 12, 1981) 8 1-2, 11

Lane v. Candura, . Mass. App. , 376 N. E.2d 1232

enen . . 11

Palko v. Connecticut, 302 U.S. 319 (1937) . 12

Parratt v. Taylor, . U.S. , 101 S. Ct. 1908

(1981) abe 12

Roe v. Wade, 410 U.S. 113 (1973) ................ 12, 13, 19

Rogers v. Okin, 478 F. Supp. 1342 (D. Mass. 1979),

aff’d in part and rev'd in part, 634 F.2d 650 (Ist

Cir. 1980) 5, 10-12, 14-16, 18, 19, 22

Runnels v. Rosendale, 499 F.2d 733 (9th Cir. 1974) .... 13

Schloendorff v. Society of New York Hospital, 211

PEs RA OU Weds DW CIO) ccestscccsiccscsesccocccssnccseseccecees 6

Skinner v. Oklahoma, 316 U.S. 535 (1942) ou... 12

iv

Tant or Autuorities Crrep

Cases

Page

Stanton v. Stanton, 421 U.S. 7 (1975) 20

Thibault v. Lalumiere, 318 Mass. 72, 60 N.E.2d 349

(1945) 6

Union Pacific Railway Co. v. Botsford, 141 U.S. 250

(1891) 12

Vitek v. Jones, 445 U.S. 480 (1980) 5, 8, 22, 23

Watson v. City of Memphis, 373 U.S. 526 (1963) ........ 16

Whalen v. Roe, 429 U.S. 589 (1977) 12

Winters v. Miller, 446 F. 2d 65 (2d Cir.), cert, denied,

404 U.S. 989 (1971) | 14

Wolff v. McDonnell, 418 U.S. 539 (1974) 5

Wyatt v. Stickney, 344 F.Supp. 373 (M.D. Ala. 1972)

aff d sub. nom., Wyatt v. Aderholt, 503 F.2d 1305

(5th Cir. 1974) 13

Zablocki v. Redhail, 434 U.S. 374 (1978) 13

Constitution

United States Constitution:

First Amendment 12

Ninth Amendment 12

Fourteenth Amendment, Due Process Clause

i, 3, 4, 8, 9, 12

*

Tan oy AUrnonrrins Crrep

Pago

Statutes

9 California Administrative Code, Subchapter 4, Ar-

ticle 5.5, Sections 850 ot Se.. s 2

Idaho Code, Sections 66-346 (1981) ue 9

Illinois Rev. Stat., Chapter 9114, Sections 2-107 (1979) 9

Massachusetts Gen. Laws Ann., Chapter 123 (1981):

nenne 25

Other Authority

American Psychiatric Association Task Force Report:

Tardive Dyskinesia (1980), p. 18 . . . 16

No, 80-1417

In the Supreme Court

OF THE

United States

Ocroner Term, 1981

Mark M1114, et al.,

Petitioners,

vs.

Runm Rooens, et al.,

4 Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the First Oircuit

BRIEF FOR BARBARA JAMISON, ET AL.,

PLAINTIFFS IN JAMISON v. FARABEE,

UNITED STATES DISTRICT COURT,

NORTHERN DISTRICT OF CALIFORNIA,

NO. 078 0445 WHO,

AS AMICI CURIAE

INTEREST OF AMICI CURIAE*

Amici are the plaintiff class representatives in a certified

class action currently pending in the United States District

Court for the Northern District of California, Jamison v.

Farabee (No. C78 0445 WHO). Like the case at bar, Jami-

sow raises a constitutional challenge to state procedures

*Consent to the filing of this brief has been obtained from the

parties to this action, and copies of their letters have been lodged

with the Clerk of the Court.

)

—

allowing forced administration of antipsychotic drugs to

involuntarily committed mental patients. The complaint

seeks both injunctive relief and a declaratory judgment

recognizing an involuntarily committed patient’s constitu-

tional right, absent a judicial determination of incompe-

tence, to make an informed choice and to refuse treatment

with antipsychotic medications. Indeed, because of the

similarity of the constitutional issues presented in the two

cases and the likelihood that this Court’s decision would

have a significant impact upon their resolution, Jamison

has been stayed pending announcement of decision in the

instant case. Accordingly, amici have a substantial interest

in this case.

This brief is filed in support of respondents and urges

affirmance of the First Cireuit's decision. We emphasize

the role played by state law at several junctures in the

constitutional analysis for two reasons. First, amici con-

tend that Massachusetts law not only precludes several of

the grounds upon which petitioners urge reversal, but also

provides a ground for affirmance not relied on by the Court

below: that state law creates a right to refuse treatment

with antipsychotic drugs to which procedural due process

protections attach under the Federal Constitution. Second,

even if Massachusetts law did not mandate the relief

granted below, different laws of other states, including

California, could lead to different results in other actions.

Amici believe that by clarifying the state-law questions pre-

sented, this brief may assist the Court to frame its decision

on the federal constitutional issues, giving due weight to

different state schemes.

STATEMENT OF THE CASE

Amici adopt and incorporate by reference the “State-

ment of the Case” contained in Respondents’ brief.

SUMMARY OF ARGUMENT

Since the First Circuit’s devisior. in this case, the Su-

preme Judicial Court of Massachusetts has held that

„allbsent an overwhelming State interest, a competent in-

dividual has the right to refuse . treatment“ with anti-

nsychotic drugs. In re Guardianship of Roc, Mass.

421 N. E. 2d 40, 51 (1981). Moreover, a person who is him-

self incompetent to exercise this fundamental right has the

right to a judicial determination as to what his decision

would have been if he were competent to choose, This

“substituted judgment” must be based on the “individual's

values and preferences” and emphatically “not what is

medically in the ward's best interests.“ Jd. at 52 (emphasis

original). In short, Massachusetts law denies any state

interest in forcibly drugging any individual, whether com-

petent or not, on the grounds that the treatment is medi-

cally in his best interests.

This decision affects the analysis of federal constitu-

tional rights in two distinct ways, First, it creates a liberty

interest under state law to which federal due process pro-

tections apply. Because state law gives rise to a legitimate

expectation that these profoundly intrusive drugs will not

be forcibly administered except in certain limited cireum-

stances and after some kind of procedure, the federal con-

stitution governs the adequacy of the procedures for

making the necessary determination.

4

Second, the decision in Guardianship of Roe limits the

state’s legitimate interests for purposes of striking the bal-

ance with substantive liberties under the federal constitu-

tion, Massachusetts forswears as a matter of state law any

parens patriae interest in forcing patients to accept treat-

ment medicaily determined to be in their best interests. Pe-

tioners may not rely in this Court on a justification for

forced treatment that would not be regarded as a legiti-

mate state interest by the courts of Massachusetts.

Finally, Massachusetts procedures for involuntary com-

mitment do not provide a constitutionaliy adequate basis

for depriving a competent patient of his right to refuse

treatment with antipsychotic drugs. The finding that a

patient is “mentally ill” does not give the state a com-

pelling interest in forcing him to accept a treatment as

intrusive as antipsychotic drug treatment. Nothing in the

Massachusetts statutes governing involuntary commitment

suggests that there is any consideration or determination

at the commitment stage as to whether sufficient reason

exists to justify seriously intrusive modes of treatment for

the particular patient involved. Thus the Court of Appeals

correctly has held that some procedure in addition to the

involuntary commitment itself is necessary in order to pro-

vide the procedural protections required by the Due Proe-

ess Clause of the Fourteenth Amendment before a patient

can be deprived of his right to refuse treatment with

antipsychotic drugs.

5

AN INVOLUNTARILY COMMITTED PATIENT HAS A

LIBERTY INTEREST, ROOTED IN STATE LAW

AND PROTECTED BY THE DUE PROCESS CLAUSE,

IN BEING FREE FROM FORCIBLE TREATMENT

WITH ANTIPSYCHOTIC DRUGS

Many decisions of this Court establish that a constitu-

tionally protected liberty interest may be created by state

law as well as by the substantive liberties inherent in the

federal constitution. See, e. g., Vitek v. Jones, 445 U.S. 480,

488 (1980); Greenholtz v. Inmates of Nebraska Penal &

Correctional Complex, 442 U.S. 1, 7 (1979); Wolff v. Me-

Donnell, 418 U.S. 539, 555-557 (1974).

The right under Massachusetts law to be free from

forcible treatment with antipsychotic drugs creates a

liberty interest, independent of the federal constitutional

right of privacy upon which the Court of Appeals relied,

Rogers v. Okin, 634 F. 2d 650, 653 (Ist Cir. 1980), aff’g in

part d rev’g in part, 478 F. Supp. 1342 (D. Mass. 1979),

that is sufficient to invoke procedural due process protec-

tions. Moreover, the laws of other states, including those

of California, which apply to the action brought by amici,

present distinct constitutional issues which should not be

foreclosed by the Court’s decision in this action.

In a decision announced after the decisions below, the

Supreme Judicial Court of Massachusetts held that a fun-

damental liberty interest is at stake when a mentally ill

person is forced to undergo treatment with antipsychotic

drugs. In re Guardianship of Roe, Mass. . 421 N. E.

2d 40 (1981). The question considered in that case was

whether the guardian of an incompetent ward could consent

to treatment of the ward with antipsychotic drugs. The

Court began its analysis with what it viewed as an “in-

disputable” premise: “[a]bsent an overwhelming State

interest, a competent individual has the right to refuse

such treatment.” Jd. at 51 & n.9. The Court rested this

right on three grounds: “the constitutional right to pri-

vacy,” “the inherent power of the court to prevent mistakes

or abuses by guardians” under Massachusetts law, and the

common law right of self-determination or a substituted

judgment regarding “ ‘what shall be done with [one’s] own

body’” Id. at 51 n.9, quoting Schloendorff v. Society of

New York Hospital, 211 N.Y. 125, 129, 105 N.E. 92 (1914)

(Cardozo, J.). See also Thibault v. Lalumiere, 318 Mass.

72, 60 N.E.2d 349 (1945). State law alone sustains at least

the last two of these three grounds.

Concluding that an incompetent person is entitled to the

same respect as a competent person, the Court specifically

considered the procedures to be followed before a non-

institutionalized incompetent person could be forcibly

treated with antipsychotic drugs. It held that an incom-

petent person cannot be forcibly drugged except under the

following circumstances:

(1) [Where a judicial substituted judgment deter-

mination indicates that the incompetent individual

would, if competent, accept antipsychotic drugs, or (2)

where there exists a state interest of sufficient magni-

tude to override the individual’s right to refuse.

Guardianship of Roe, 421 N.E.2d at 61.

7

The Court in Guardianship of Roe made clear that its

decision identified the interests at stake and processes for

balancing them, but expressly declined “to strike the bal-

ance in any individual case.” Id. at 62. Specifically, with

respect to the rights of involuntarily committed patients,

the Court observed that it would be premature to con-

sider “the relative importance of adverse interests.” Id.

This limitation does not, however, diminish the impact of

the decision on the federal constitutional analysis. The

possibility that there might be an adverse state interest

“of sufficient magnitude to override the individual’s right

to refuse[,]” 421 N. E. 2d at 61, does not detract from the

existence of a liberty interest—even on the part of invol-

untarily institutionalized patients—requiring procedural

due process. Whether state interests prevail is a federal

constitutional question to be decided in accordance with

constitutionally adequate procedures, and not a question

that can determine whether a constitutionally protected

liberty interest exists in the first instance.

The principles of state law announced in Guardianship

of Roe create a substantive right in all persons to refuse

treatment with antipsychotic drugs absent an overwhelm-

ing state interest, and give rise to legitimate expectations

on the part of involuntarily committed patients that their

fundamental right will not be taken away without proce-

dural protections. It is clear that a finding that the patient

is incompetent—whether explicit or somehow implicit in the

commitment decision—would not, standing alone, allow the

institution to administer antipsychotic drugs. A finding of

incompetency would only invoke the right to a substituted

judgment as to what the patient would have chosen if he

were competent.

8

Thus, Guardianship of Roc gives rise to a legitimate

state-protected expectation that there will be some kind of

procedural due process as to whether the patient is com-

petent; if incompetent, whether he would refuse if he were

competent; and if he refuses, or would refuse, whether

institutional interests outweigh his right to refuse in the

particular circumstances, This legitimate expectation cre-

ates a liberty interest subject to procedural due process

protections, just as did the Nebraska parole statute inter-

preted in Greenholtz v. Inmates of the Nebraska Penal and

Correctional Complex, 442 U.S. 1, 11 (1979), or the pris-

oner transfer statute interpreted in Vitek v. Jones, 445

U.S. 480, 489-90 (1980). It is therefore a question of fed-

eral constitutional law whether the procedures are ade-

quate.

Amici contend that Massachusetts law creates a liberty

interest sufficient, standing alone, to justify the relief in

this case. However, even if the Court were to determine

otherwise, its holding would not justify the broad conten-

tion of petitioners that there is no constitutionally pro-

tected right to refuse antipsychotic drugs. For example,

the laws of Illinois and Idaho, as well as California, the

home state of amici, each create a liberty interest distin-

guishable from the state-created liberty interest directly

involved in the case at bar. The procedures that would be

constitutionally required to protect the distinct liberty

interests created by the laws of those states might justify

enforcement, under the federal constitution, of a right to

refuse treatment even if no such right arose under

Massachusetts law.

9

An Illinois statute specifically provides that adult

patients or their guardians:

[Shall be given the opportunity to refuse generally

accepted mental health. . . services, including but not

limited to medication, unless such services are neces-

sary to prevent the recipient from causing serious

harm to himself or others.

III. Rev. Stat. ch 914% § 2-107 (1979). Similarly, an

Idaho statute provides:

(a) Every patient shall have the following rights:

. . . (4) To refuse specific modes of treatment:

Only in cases of emergency or when a court has deter-

mined that a patient lacks capacity to make informed

decisions about treatment, may the director of a facil-

ity deny a patient’s rights under subsection (a) (4)

of this section.

Ipano Cove § 66-346 (1981). In California a liberty inter-

est is created by, inter alia, judicial decisions establish-

ing a common law right of patients to be informed about

proposed treatment and allowed to refuse. Cobbs v. Grant,

8 Cal. 3d 229, 242, 502 P.2d 1, 104 Cal. Rptr. 505 (1972).

Clearly, these state laws create liberty interests sufficient

to serve as a predicate for procedural due process

protections.

10

I

UNDER MASSACHUSETTS LAW, THE SUBSTANTIVE

CONSTITUTIONAL RIGHT TO REFUSE ANTIPSY-

CHOTIC DRUGS CANNOT BE OVERRIDDEN ON

THE BASIS OF A REFUSING PATIENT'S BEST

MEDICAL INTERESTS

The findings below establish conclusively that antipsy-

chotic drugs are powerful, mind-altering agents that un-

avoidably bring with them significant physical side-effects

and a serious risk of permanent physical impairment.

Rogers v. Okin, 478 F. Supp. 1342, 1359-60 (D. Mass. 1979).

The attempts of petitioners and the amici urging reversal

to cavil with the findings below, regarding, for example,

the statistical incidence of tardive dyskinesia,’ do not blunt

the central point to be drawn from the technical facts:

treatment with antipsychotic drugs cannot be separated

from intrusions—substantial both in their impact during

treatment and in their potential for permanent ill-effects—

on mind and body.

This medical fact presents the patient, or the person

deciding for him, with a choice that cannot be made on

purely technical, medical, or psychiatric grounds. In re

As the opinions below noted, tardive dyskinesia is a serious and

possibly irreversible neurological side effect of prolonged treatment

with antipsychotic drugs, Rogers v. Okin, 634 F.2d at 653 n. 1;

Rogers v. Okin, 478 F. Supp. at 1360. The studies cited by the Dis-

trict Court estimated that tardive dyskinesia strikes between 30

and 56 percent of patients treated with drugs for an extended

period. Id. Petitioners cited other studies to the effect that 15%

of chronically ill psychiatric patients treated with antipsychotic

drugs suffer persistent tardive dyskinesia “that may be attributable

to antipsychotic medication . . . .” Petitioners’ Brief at 52.

11

Guardianship of Roe, ...... Mass. „ 421 N.E.2d 40, 51-52

(1981). The question is not whether the treatment will

eure the patient, but whether the patient wants to live

with the cure. Like the patient who must choose whether

to risk the spread of gangrene or endure life without a leg,

Lane v. Candura, ...... Mass. App , 376 N.E.2d 1232.

(1978), the plaintiffs in Rogers and in Jamison are con-

fronted with a medically recommended treatment that

exposes them to a serious risk of permanent impairment.

It is beyond question—and conceded by the petitioners

here, as the Court of Appeals noted, Rogers v. Okin, 634

F.2d at 654—that a competent, noninstitutionalized person

has the right to make this choice as a matter of personal

autonomy. See Guardianship of Roe, 421 N.E.2d at 51 &

n.9. The issue presented by both Jamison v. Farabee and

the case at bar is whether, and in what circumstances, the

treating staff of a state mental institution can make this

decision against the wishes of an involuntarily committed

patient.

A. Forcible Treatment with Antipsychotic Drugs In-

fringes Substantive Rights Under the United States

Oonstitut n That Can Be Overridden Only by a Com-

pelling State Interest

The constitutional principles underlying the right of

persons in general to refuse antipsychotic drugs are sev-

eral, but not in conflict. Because of the seriousness of the

intrusion on a patient’s physical and mental integrity the

Court of Appeals held that forcible treatment with anti-

psychotic drugs implicated constitutional rights found in

“the penumbral right to privacy, bodily integrity, or per-

12

sonal security,” Rogers v. Okin, 634 F.2d at 653. In a

variety of contexts, this Court has recognized a guarantee

of personal privacy regarding individual rights that are

“fundamental” or “implicit in the concept of ordered

liberty.” Roe v. Wade, 410 U.S. 113, 153 (1973), quoting

Palko v. Connecticut, 302 U.S. 319, 325 (1937). This

fundamental right of personal privacy is variously seen

as deriving from the First Amendment, the penumbra

of the Bill of Rights, the Ninth Amendment, or the con-

cept of liberty guaranteed by the first section of the Four-

teenth Amendment. Roe v. Wade, 410 U.S. 113, 152 (1973).

A similar guarantee may be seen in the general substantive

protections provided by the due process clause of the Four-

teenth Amendment. See, e.g., Parratt v. Taylor, US.

4 „ , 101 S. Ct. 1908, 1918 (1981) (Blackmun, con-

curring).

Whether characterized as a penumbral right or a liberty ©

interest rooted in substantive due process, it is well es-

tablished that the constitutional aegis of privacy protects

not only the individual interest in avoiding disclosure of

personal matters, but also “the interest in independence in

making certain kinds of important decisions.” Whalen v.

Roe, 429 U.S. 589, 598-600 (1977). This Court has recog-

nized that the right to choose whether to undergo a seri-

ously intrusive medical procedure is fundamental under

the common law, Union Pacific Railway Co. v. Botsford,

141 U.S. 250, 251 (1891), and that there is a fundamental

constitutional right to make private choices regarding in-

trusive medical procedures in certain other contexts, e. h.,

Skinner v. Oklahoma, 316 U.S. 535, 541 (1942); Roe v.

13

Wade, 410 U.S. 113, 152-53 (1973). Lower courts have also

recognized the individual’s fundamental, constitutionally

protected interest in choices concerning seriously intrusive

state-ordered medical treatment. See, e.g., Runnels v. Ro-

sendale, 499 F.2d 733, 735 (9th Cir. 1974); Wyatt v. Stick-

ney, 344 F.Supp. 373, 380 (N.D. Ala. 1972), aff’d sub nom.,

Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir, 1974).

Because the right to be free of serious bodily or mental

intrusions is a fundamental civil right, a state may not

engage in such intrusions unless they are justified by a

compelling state interest, see, e.g., Zablocki v. Redhail,

434 U.S. 374, 387-88 (1978). Roe v. Wade, 410 U.S. 113, 155

(1973) ; Eisenstadt v. Baird, 405 U.S. 438, 447 n.7 (1972);

or permitted by a constitutionally valid waiver of the right,

see, e. g., Barker v. Wingo, 407 U.S. 514, 525 (1972).

In short, it is clear that forcible administration of anti-

psychotic drugs to a competent, non-institutionalized

patient would require a compelling state interest. Never-

theless, petitioners argue that the applicable constitutional

standard of scrutiny in this case is not whether the state

has a compelling interest in overriding the involuntary

patient’s choice, but whether the state has a “rational rea-

son” for doing so. Petitioners’ brief (“Pet. Br.“) at 18.

The argument turns entirely on the status of respondents

as involuntarily committed mental patients. “Involuntary

mental patients, like prisoners, have lost their freedom

pursuant to due process court hearings in furtherance of

statutorily prescribed social goals.” Pet. Br. at 20-21. See

also Pet. Br. at 46. But to say no more than this is to

beg the important constitutional questions: What free-

14

doms are lost by virtue of involuntary commitment?! What

compelling state interests are served by the deprivation of

these freedoms?

The fundamental right of a non-institutionalized person

to refuse antipsychotic drugs can be regarded as “lost”

upon commitment only if the state’s interests in drugging

an involuntarily committed person are sufficiently com-

pelling to override the patient’s freedom to refuse the

drugs.“ Amici herein wish to emphasize a limited but im-

portant point within this analytical framework. The cen-

tral question—whether the state has interests sufficient to

justify forcible treatment of a competent, involuntarily

committed patient with antipsychotic drugs—turns on the

state law defining the state interests involved. If, as amici

contend, the question must be answered in the negative

under Massachusetts law, then the decisions below must

surrogate. However, unless the patient has been found incompe-

tent, the state cannot tutionally consent on his behalf. Win-

ters v. Miller, 446 F. 2d 65, 68 (2d Cir.), cert. denied, 404 U.S. 985

of a committed patient. Rogers v. Okin, 634 F.2d at 658; Rogers v.

Okin, 468 F. Supp. at 1361. Petitioners and amici favoring reversal

do not question the Courts’ analysis of state laws in this respect.

Thus, forcible treatment with antipsychotic drugs cannot be justi-

fied on the basis of a purported waiver by the state of the invol-

untary patient's right to refuse.

15

be affirmed.’ Moreover, an adverse decision in the present

case, based on Massachusetts law, would not foreclose the

conclusion that a patient’s constitutional right to refuse

such an intrusive treatment outweighs the different and

possibly more restricted state interests that might be rec-

ognized under the laws of another state.

B. Massachusetts Does Not Have a Compelling Interest

Which May, Under Its Own Law, Be Asserted in Favor

of Forcible Treatment with Antipsychotic Drugs,

Absent an Emergency

Massachusetts’ important interest in protecting third

parties from violent patients has never been disputed in

this action. However, as the courts below concluded, this

state interest can justify forcible treatment only in emer-

gency situations where a threat to others is present. Rogers

v. Okin, 478 F. Supp. at 1364-65, 634 F.2d at 656.

Although other institutional interests favoring forcible

treatment undoubtedly exist, strong reasons support the

conclusion of the courts below that these institutional

interests are not of sufficient weight to override the right

of the competent patient to refuse treatment with anti-

psychotic drugs. One institutional interest—of questionable

weight—is the greater ease of administration because the

patients are rendered more docile and manageable by

the drugs. Pet. Br. at 64 & n.21. But the District Court

*The converse is not true. State laws establishing that a certain

state interest does exist do not determine the weight of that state

interest when balanced against a contrary liberty interest pro-

tected by the federal constitution.

16

found that the doctors’ predictions of widespread re-

fusals, greatly increasing the institutional burdens, had

not been realized during the time in which a temporary re-

straining order has been in effect. Rogers v. Okin, 478 F.

Supp. at 1370. Another such interest is to avoid the

greater cost that the state must bear if treatment without

antipsychotic drugs extends the time of commitment.“

As the District Court noted, however, considerations

of cost and administrative convenience have never been

held sufficient, standing alone, to override fundamental

constitutional rights. Jd. at 1370-71, citing Watson v. City

of Memphis, 373 U.S. 526 (1963). Cf. Doe v. Gallinot,

No. 80-5658, typescript at 8 (9th Cir. filed Sept. 9, 1981)

(deciding rights of temporarily involuntarily committed

patients to a due process hearing).

We submit that the only arguably compelling state

interest in this case arises from the contention, argued

forcefully by the American Psychiatric Association as

amici, that as a matter of medically objective fact, treat-

ment with antipsychotic drugs is conclusively in “the best

interests” of any patient for whom it is prescribed.

‘Notwithstanding the assertions of petitioners and the American

Psychiatric Association that recognition of the right to refuse anti-

psychotic drugs would lead to longer commitment durations, ( Peti-

tioners’ Brief at 62, Brief of American Psychiatric Association at

15) the recent experience of shortened psychotic hospitalization

may be explained by a number of factors, including “a complex

interplay among new forms of medical treatment of psychiatric

patients, administrative decisions, social and philosophic changes

in medicine, and cultural and historical factors that are poorly

understood.” APA. Task Force Report: Tardive Dyskinesia at 18

(1980). : ,

17

The briefs of respondents and other amici favoring

affirmance fully address the balance of interests between

the. fundamental right of a patient to reject this potentially

disabling treatment, on one side, and, on the other, the

state’s interests in imposing it. We mean to emphasize a

more limited point: that by reason of Massachusetts law,

“the best interests” of the patient cannot be considered as a

state interest or given any weight n the side of the balance

favoring forcible treatment.

In Guardianship of Roe, the Supreme Judicial Court

of Massachusetts specifically considered the interests in-

volved in the decision whether to treat a noninstitutional-

ized, incompetent. person with antipsychotic drugs. Start-

ing with the premise that “[a]bsent an overwhelming state

interest, a competent individual has the right to refuse

such treatment,” 421 N.E. 2d at 51, the Court concluded

that an incompetent person, for whom a permanent

guardian had been properly appointed, is nevertheless

entitled to a judicial determination as to whether

he should be subjected to treatment with antipsychotic

drugs. In making that determination, the question the state

probate court must decide “is not whiat is medically in the

ward’s best interests” but rather “what the incompetent

individual would do if competent... Jd. at 52 (emphasis

in original). While the court may consider the best inter-

ests of the ward “as likely foundations of individual pre-

ference to be considered in the substituted judgment

determination,” the court’s charge is to determine and

honor the individual’s own choice:

If the judge feels that the “hest interests” of the ward

demand one outcome but concludes the ward’s sub-

stituted judgment would require another, then, in the

18

absence of an overriding State interest, the substituted

judgment prevails.

Id., at 59-60 n.20.

In short, if the probate court concludes, having taken all

relevant factors into account, that the incompetent would

refuse antipsychotic drugs, the state may not rely on the

benefits of such treatment to the patient as a legitimate

reason to force treatment upon him. It follows, a fortiori,

that when a competent person refuses antipsychotic drugs,

the state may not override that choice by relying on the

asserted medical benefits to him of taking the drugs.

Thus, although the Court expressly declined to rule on

the rights of involuntarily committed patients, noting the

institutional interests such as order and safety that

might override a committed patient’s refusal to consent,

id. at 61 n.23°, the Court’s rationale establishes that

*With reference to the possibility that, in particular circum-

stances, institutional interests may override the patient's refusal,

the Supreme Judicial Court, 421 N.E. 2d at 61 n.23, cited Com-

missioner of Correction v. Myers, .... Mass. ...., 399 N.E.2d

452 (1979). In that case, a prisoner had threatened to refuse

hemodialysis and medication—without which he would have died

hemodialysis.

The risks that may be imposed on others within a mental hos-

pital by a patient's refusing antipsychotic drug treatment are not

as dramatic as in Myers, and are adequately accommodated by the

171

111

0

i

4.

1

19

Massachusetts law does not recognize the therapeutic

benefits to the patient as among the legitimate state inter-

ests that might justify forcibly administering antipsychotic

drugs to a competent patient or an incompetent who would,

if competent, refuse. In essence, Massachusetts forswears

as a matter of state law any parens patriae interest in

forcing a competent, refusing patient, or an incompetent

patient who would refuse, to accept treatment medically

determined to be in his best interests.“

Petitioners may not rely in this Court on a justification

for treatment that would not be regarded as a legitimate

state interest by the courts of Massachusetts. This Court

customarily looks to state law to identify the nature and

scope of the state interests that might be balanced against

an individual’s liberty interest. F.., Roe v. Wade, 410 U.S.

113, 148 & n42, 151 & nn.48-50 (1973); Ingraham v.

Wright, 430 U.S. 651, 661-63 (1977). Just as state law con-

sistent with an asserted interest may tend to substantiate

it, state laws or decisions of state courts inconsistent with

the supposed interest undercut the state’s reliance on that

purported interest.’ In Carey v. Population Services Inter-

*Guardianship vf Roe confirms as a matter of state law the Court

of Appeals’ conclusion that the state’s parens patriae interest does

not justify treating competent patients who refuse. Rogers v. Okin,

634 F.2d at 657. Moreover, Guardianship of Roe further refines the

"Again, this is not to say that state law can expand the scope of

state interests beyond federal constitutional limits. We contend

only that state law can eliminate from consideration a purported

state interest that federal law might otherwise regard as a factor

supporting the validity of the challenged provision. See note 3,

supra.

20

national, 431 U.S. 678 (1977), which invalidated New York’s

law banning sales of contraceptives to minors, one of the

state interests offered in support of the statute was deter-

rence of illegal sexual conduct among minors. Four Jus-

tices disregarded this asserted state interest, noting that

another provision of New York law required that contra-

ceptives be provided to “sexually active” children receiving

welfare. Id. at 695 n.18 (opinion of Brennan, J.).“

In this case, the Court has a much stronger basis for

disregarding the asserted state interest than an inference

arising from other state laws,in conflict with the purported

interest. The highest court of Massachusetts has declared

that the patient’s “best interests” do not constitute a state

interest in favor of forcible administration of antipsy-

chotic drugs, when the patient is competent and refuses

such treatment or is incompetent and would refuse if he

were competent. Guardianship of Roe, 421 N.E.2d at 59-60

n.20.

Thus, on the basis of this limitation of state interests as

a matter of state law, the policy of forcible treatment with

In Stanton v. Stanton, 421 U.S, 7 (1975), this Court invalidated

the portion of a Utah statute that established different ages of

majority for males and females. Acknowledging the state's reliance

on the fact “that females tend to marry earlier than males,” the

Court attributed no weight to that factor as a justification for the

challenged provision because another portion of the same statute

provided that “all minors obtain their majority by marriage.”

Id. at 14. The Court in Stanton v. Stanton, like the four Justices

in Carey v. Population Services Int I., 431 U.S. at 695 n.18 drew

an inference, based on state law other than the challenged pro-

vision, that the asserted state interest should be disregarded.

21

antipsychotic drugs cannot be justified by the medical need

of involuntarily committed patients for such treatment,“

the therapeutic effects of the drugs on many willing pa-

tients,“ the state’s obligation to the patient to provide

effective treatment,” or the dictates of medical standards

regarding advisable modes of treatment.“

INVOLUNTARY COMMITMENT UNDER MASSACHU.-

SETTS LAW DOES NOT PROVIDE A CONSTITU-

TIONALLY ADEQUATE BASIS FOR DEPRIVING

PATIENTS OF THEIR RIGHT TO REFUSE FORCI.

BLE TREATMENT WIH ANTIPSYCHOTIC DRUGS

Whether rooted in state or federal law, a patient’s

liberty interest in refusing forcible treatment with anti-

*Pet. Br. at 54-55 (asserting that patients’ “need” justifies forcible

treatment).

Pet, Br. at 59-60 and American Psychiatric Association Brief at

14-17 (relying on the therapeutic benefits of drugs).

"The American Psychiatric Association notes, at page 11 of its

brief, that Massachusetts is obligated under its own law to provide

treatment to involuntary mental patients. Nothing in state law man-

dates any particular mode of treatment. The argument in favor of

affirmance does not depend, as the American Psychiatric Associa-

tion assumes, e. g. at page 13 of its brief, on the existence of a right

to refuse any and all forms of treatment. The right to refuse anti-

psychotic drugs arises because of their particularly serious, adverse

and intrusive effects.

“Petitioners rely on the state’s interest in maintaining accept-

able medical standards” at pages 64-66 of their brief. Insofar as

“acceptable medical standards” refers to the medical professionals’

opinions as to whether the “benefit/risk ratio” of treatment with

antipsychotic drugs is favorable, American Psychiatric Association

brief at 15-16 n.13, Guardianship of Roe holds that it is the patient's

assessment of the benefits and risks that must be honored. 421

N. E. d at 51-52.

22

psychotic drugs is protected by federal constitutional

standards of procedural due process. Vitek v. Jones,

445 U.S. at 490-491 & n.6. The determination of what

process is due necessarily turns on the facts and circum-

stances of the particular case, and is fully addressed in

the context of the record below by the respondents. Our

point, again, is more limited: that involuntary commitment

under Massachusetts law does not in itself provide pro-

cedural protections that are a constitutionally adequate

basis for depriving patients of their right to refuse this

potentially devastating and disabling form of treatment.

Petitioners and amici urging reversal argue that Massa-

chusetts involuntary commitment procedures do afford any

constitutionally required protections regarding the forcible

administration of antipsychotic drugs to involuntarily

committed patients. Pet. Br. at 26-28; American Psychi-

atric Association Brief at 13-14. They attach controlling

significance to the fact that all involuntarily committed

patients are determined, after full due process, to be

“mentally ill.” Pet. Br. at 26-28, 33-34; American Psychi-

atric Association Brief at 8-9. To the extent this argument

depends on the implicit assumption that all “mentally ill”

patients are incompetent to make treatment decisions it is

flatly inconsistent with the unchallenged conclusion of the

Court of Appeals regarding Massachusetts law. Rogers v.

Okin, 634 F. 2d at 658-59. To the extent it does not presume

incompetence, it simply begs the constitutional questions

in the case. For despite efforts to cloud the issue in

medical mystique, the constitutional analysis is straight-

forward. Involuntary commitment can operate to extin-

guish a competent patient’s constitutional rights in only

two ways: either the fact of commitment gives the state a

compelling interest in forcible drug treatment that in all

cases outweighs the constitutional right to refuse; or the

process of involuntary commitment affords constitutionally

adequate procedures in the case of each patient for depriv-

ing him, upon commitment, of his constitutional right to

refuse treatment with antipsychotic drugs.

The first question is one of substantive constitutional

rights. To say that commitment entails a determination of

“mental illness” adds nothing to the analysis unless that

finding gives rise to a compelling state interest that justi-

fies forcible treatment with antipsychotic drugs. But, as

the preceding section demonstrates, Massachusetts denies

as a matter of its own law any state interest, based on the

patient’s best medical interests, in imposing a medical

treatment as intrusive as antipsychotic drugs on a patient

who chooses to reject it. Guardianship of Roe, 421 N.E. 2d

at 59-60 and n. 20. See discussion at pp. 15-21, supra.

The second question is one of procedural due process.

Petitioners and the amici favoring reversal argue that the

involuntary commitment process alone adequately protects

the liberty interests implicated by forcible treatment with

antipsychotic drugs, and that such “medically appropriate”

treatment is among the “conditions of confinement” validly

imposed on the patient as a result of the determinations

made at the commitment stage. American Psychiatric

Association Brief at 13-14. See Vitek v. Jones, 445 U.S. at

493. Again, the key factual determination relied upon to

support this reasoning is the finding at the commitment

stage that the patient is “mentally ill” and therefore in

24

need of treatment. Pet. Br. at 26-35; American Psychiatric

Association Brief at 8-9. Once this is established, it is

argued, the patient has lost the right to refuse any medi-

cally “appropriate” treatment. But again, the argument

does nothing more than circle the central constitutional

question: what is it about a finding of “mental illness”

that gives the state power to impose on competent patients

a form of treatment that has indisputably profound and

potentially devastating side effects?

The liberty interest at stake here does not turn on

whether the treatment is medically appropriate. It is,

rather, the right to reject a medically recommended treat-

ment that has well-documented, serious and unavoidable

consequences. As the Supreme Judicial Court of Massa-

chusetts recognized, the issue is not one of medicine but

of self-determination.“ See Guardianship of Roe, 421 N.E.

2d at 59-61. The attempt to sweep this uniquely individual

right aside under the general rubric of “appropriate medi-

cal treatment” only serves to underscore that the liberty

interest is in fact entirely unprotected by the procedures

for involuntary commitment.

The Court of Appeals correctly held that nothing short

of an emergency situation—nothing, certainly, that could

“For the same reason, the common law cause of action for

medical malpractice and the ethical tenets of the medical pro-

fession, which address the possibility that doctors may inap-

propriately prescribe antipsychotic medications, do not provide

alternate or supplemental procedural protection for this substantive

right. In this and other respects, the liberty interest at stake here

differs crucially from the right involved in Ingraham v. Wright,

430 U.S. at 670, upon which the American College of Neuro-

psychopharmacology relies in its amicus curiae brief at 24-25.

25

be decided once and for all at the commitment stage—

would involve a sufficiently compelling state interest to

justify forcible antipsychotic drug treatment of a compe-

tent patient, or of an incompetent patient absent a sub-

stituted judgment that he would consent. 634 F. 2d at 661.

However, even if one accepts the contrary premise that

some determination could be made at that stage, nothing

in the Massachusetts statutes governing involuntary com-

mitment request the court even to consider, much less

determine, in commitment proceedings, whether sufficient

reason exists to justify seriously intrusive treatment modes

for the particular patient involved. Mass. Gen. Laws

Axxor. ch. 123 §§ 2, 6-8 (1981).

| Finally, the decision of the Massachusetts Supreme

Judicial Court in Guardianship of Roe established a state-

created liberty interest, discussed at pp. 5-8, supra, re-

quiring constitutionally adequate procedures to determine

whether the patient is -ompetent; if incompetent, whether

the patient would refuse antipsychotic drugs; and whether

institutional interests outweigh the right to refuse in

particular circumstances. See discussion at p. 8, supra.

Present Massachusetts commitment procedures address

none of these issues.

In short, commitment procedures under Massachusetts

law cannot be relied upon to provide the procedural pro-

tections required by the Due Process Clause of the Four-

teenth Amendment before a patient can be deprived of

his constitutional right to refuse treatment with anti-

psychotic drugs.

26

CONCLUSION

For the reasons stated in this brief and in the brief of

Respondents, the judgment of the Court of Appeals should

be affirmed.

Morton P. Conen

Constitutional Law Clinic

Golden Gate University

School of Law

536 Mission Street

San Francisco, CA 94105

Telephone: (415) 442-7284

*Counsel of Record

Respectfully submitted,

WLan Alsur“

ELLXN Borcersen

Jack W. Lonpen

Anne C. BLoompaHL

Morrison & Foerster

One Market Plaza

Spear Street Tower

San sancisco,CA 94105

Telephone: (415) 777-6000

Attorneys for Amici Curiae

Barbare Jamison, et al.,

Plaintiffs in Jamison v.

Farabee, United States

District Court, Northern

District of California,

No. C78 0445 WHO