# Amicus Brief — Mills v. Rogers

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## Record

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

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1958%3A15. Public record. Not legal advice.