Amicus Brief — Mills v. Rogers

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No. 80-1417

ee THE SEP 28 1961

SUPREME COURT OF THE UNITED |STATES |...

October Term, 1980 a

MARK MILLS, et al.,

Petitioners

RUBIE ROGERS, et al.,

Respondents

On Writ of Certiorari to the United States

Court of Appeals for the First Circuit

BRIEF FOR

PATIENTS' RIGHTS ADVOCACY SERVICES, INC.

AS AMICUS CURIAE

LOUIS M. AUCOIN, III*

Patients’ Rights’

Advocacy Services, Inc.

2525 24th Street

San Francisco, CA 94110

(415) 282-1777

* Counsel of Record

QUESTIONS PRESENTED

1. Can the State of Massachusetts

forcibly administer dangerous anti-psychotic

medications to involuntarily committed men-

tal patients against their will without

violating their Constitutional rights?

2. Is it a Constitutional exercise

of state power for the State of Massachu-

setts to forcibly administer dangerous

anti-psychotic drugs on involuntarily

committed mental patients against their

will in order to prevent their mental

deterioration?

3. Are courts Constitutionally re-

quired to safeguard the fundamental rights

of involuntarily committed mental patients

to refuse anti-psychotic drugs by exercis-

ing a "substituted judgment" on behalf of

patients who have been found incapable of

making the decision?

ii.

TABLE OF CONTENTS

Page No.

QUESTIONS PRESENTED ....... ibs

TABLE OF CONTENTS ........ £4.

TABLE OF AUTHORITIES ...... vi.

INTEREST OF AMICUS CURAIE .... 1.

SUMMARY OF ARGUMENT ....... 3.

ARGUMENT :

I. THE STATE OF MASSACHUSETTS

IS CONSTITUTIONALLY BARRED

IN NON-EMERGENCY SITUATIONS

FROM ADMINISTERING DANGEROUS

PSYCHOTROPIC MEDICATIONS TO

INVOLUNTARILY COMMITTED

aera? PATIENTS AGAINST THEIR ‘

A. Forcible Medication Of

Involuntarily Committed

Mental Patients Violates

Fundamental Rights Guar-

anteed To Them By The

Constitution Of e United

States . . >. . >. >. . . >. . >.

1. Forcible medication of invol-

untarily committed mental

me ca violates their

undamental right to privacy

in decisions concerning their

GU POGEOO 6. a okie ce 0c 0 0 Oe

2. Forcible medication of invol-

untarily committed mental

patients violates their fun-

damental right to bodily pri-

vacy and personal security

guaranteed by the Fourteenth

Il.

iii.

Amendment to the United

States Constitution ....

Forcible medication of

involuntarily committed

mental patients violates

their First Amendment

right to the free generation

Ge eee Gb te 6 0 0 ce ete

The State of Massachusetts

Has No Interest In Forcibly

Administering Dangerous

Anti-Psychotic Medications

To Involuntarily Committed

Mental Patients In Non-

Emergency Situations ...

The State of Massachusetts

Cannot Constitutionally

Deprive Mental Patients Of

The Right To Refuse Medica-

tion By Merely Committing

Them Against Their Will...

Commitment hearings in

Massachusetts do not comport

with what due process requires

before the right to refuse

medication can be denied. .

The State of Massachusetts

may not deprive involuntar-

ily committed mental patients

of their right to refuse medi-

cation by presuming their

imcompetence .......

FORCIBLE ADMINISTRATION OF

DANGEROUS PSYCHOTROPIC DRUGS

TO PREVENT FURTHER MENTAL

DETERIORATION IS AN UNCONSTI-

TUTIONAL EXERCISE OF STATE

POWER . . . . . . . . . 7 7

18.

21.

26.

30.

33.

iv.

Page No.

A. Legitimate Exercise Of The

State's Emergency Police

Powers Is Not Triggered By

The Concept Of Psychiatric

oo ee ee ae 33.

B. A Judicial Determination Of

Incapacity To Act Is Required

Before The State Acts As

fo DD a | SS 34.

1. The State has no authority.

to act as parens patriae

unless the indiviluals

mental deterioration also

poses an imminent danger

to his physical health... 36.

2. The concept of psychiatric

emergency will not further

the state's interest in

preventing further mental

deterioration or chronicity

of mental disorder ..... 38.

3. Expansion of the definition

of emergency to include the

concept of psychiatric emer-

gency denies involuntarily

committed patients equal

protection of the laws... 42.

4. Expansion of the definition

of emergency to include the

concept of psychiatric

emergency is an unconstitu-

tional delegation of legis-

ee eee ee

III. DUE PROCESS REQUIRES COURTS

TO EXERCISE "SUBSTITUTED

JUDGMENT" WHEN THE STATE ACTS

AS PARENS PATRIAF ON BEHALF

Page No.

OF PATIENTS WHO HAVE BEEN

JUDICIALLY DETERMINED

INCOMPETENT ...... . 57.

CONCLUS ION . * . . . . . . . . 7 5 9 .

vi.

TABLE OF AUTHORITIES

Cases ae, Page No.

Abrams v. U.S., 250 U.S. 616 a

yaya at he oy 8. 9B, 38

Baxstrom v. Herold, 383 U.S. “ss

Ve i . ee ra ae

Breichaupt v. Abram, 352 U.S. Fe

Cameron v. Mullen, 128 U.S.App.

.C. , .2d 193 (D.C.

DURA TAOOED oe a ee Ole 0, bl % 31

Canterb v. Spence, 150 U.S.

App D 7 263, 464 F.2d 772

(Dec Cc. Cir.), cert. denied 409

ywe AOOS CROPET bcc <e 0 em 11

Carter v. Carter Coal, 298 U.S. ‘

a SMa Se” A ee ee, ee 5

Colyar v. Third Jud. Dist. Ct.

for Salt Lake Count . 469 F.

Supp. 424 (D.Utah C.D.

(ce oi ayant lamer 337 ah ae”

Covington v. Harris, 419 F.2d

617 (D.C. Cir. 1969) .... 27

Davis v. Hubbard, 506 F.Supp.

D. i Tals 7,10,20,21,

wh CHD. Unio.2900) 22,28, 29, 4i

Doe v. Gallinot, No. 80-5658

t r., September 20,

1981) . . . . . ue) @- @ > © 20

vii.

Table of Authorities Continued

Cases Page No.

Doremus v. partes} Pugs F. dian 3

.Ne } : 26

Erickson v. Dilgard, 44 Misc.2d

27, 252 N.Y.5. 20 705 (1965) . 46

Guardianship of Roe, Mass. __,

421 NE 24 We UESOL)s o co ute | Pebay ll ,20,

58, 59

Goedecke v. State Dept. of

Institutions, 603 boa 123

(Colo. 1979) ...... Pate 7

Griswold v. conn. “as U.S. 479

(1965). > . . Se 1.2..." O° - 6 ae» @ 8

Hall v. ches ee Co., 242

We 7 rea (ee 33

In re Ballay, 157 U.S.App.D.C.

59, 482 F.2d 648 (D.C. Cir.

ie ME ears be 6. 8 36

In re Boyd, 403 A.2d een ie C.

pp. 9) “ee Bete |

In re Brooks Estate, 32 I11.2d 36l,

In re Colah (The Parsee Merchant's

ase), aly q ».

(n.s.) 209 (N.Y.C.P. 1871). . 34

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

TEE ASOO) «ete ee 0 8 6 7,35 05%

41,59

In re inlan, 70 N.J. sh 355

Ia ent (1976) t Suaiak Sava ae

viii.

Table of Authorities Continued

Cases Page No.

a Eee te ay ‘ae ) oh OF

Johnson ve Milk Marsetie Board,

Se eke osc. ures 53

Kaimowicz i Mich. ae of Mental

ea t >.

L.W. 7063, "9 Prison Law Rptr. 433

(Mich, Cir. Ct., Wayne Cty.,

maen., July 1G, 1973... « « 8, 36,

Lessard v. Schmidt, 349 F.Supp.

dD. SS 1) eee ee 26, 43

Lynch v. Baxley, 386 F.Supp. 378

(HD. Ala. 1574) BS eee Oe ag 26, 36

Mackey v. Procunier, 477 F.2d

577 (th Cir. 1973) ..... 19

Morr yssty Vv. Brewer. 408 U.S.

- _ 4 . -_ . . . . 3 0

Nelson v. Heyne, 355 F.Supp.

451. (N.D. Me tkOT a) 'w -9 te0,,6 25

O'Connor v. Donaldson, 422 U.S.

SES -CRSTOEt ae et Wr* 0 0 8 ee 18,25,28,

36,37,40,

43,44,57

Olmstead v. U.S., 27 U.S. 479

(1928). . . oe were. © 8 © 78 18, 56

ix.

Table of Authorities Continued

Cases Page No.

Palko v. Conn., 302 U.S. 319 -

(1937) . . >. .* CTF a Te a? . >.

Panama Refining Co. v. Ryan, 31

ee 0) eae tie seers » 50

Pharmaceutical Society of N.Y.

v. Letkowitz, 454 F.Supp. I175,

. 1978) aff'd 586 F.2d

953 (2d Cir. 1978). ..... 7

Price v. Sheppard, 377 Minn. 25,

WwW. CApTOR cig 6's ¢ 30

Rennie v. Klein, 462 F.Supp.

sews. BEFOP 0 oc 8 6 « 17, 10

Rennie v. Klein, 476 F.Supp.

. Supp. 294, aff'd in

pare. rev'd in part, Nos. 79-

» 79-2577 ied Cir. July

9, 1981), cert. denied, U.S.

, 110 S.Ct. 3059, 69 L.Ed.

we Nee CURE co wis a sie e 28, &

Rennie v. Klein, Nos. 79-2576

an - 3rd Cir., filed

ee Seyi ROSE) co e's cc 0 0 0 Boat enee

30,32

Rochin v. California, 342 U.S. 165

~~ 1952) . _ _ >. _ .* 7 >. >. . __ _ wih Psa

Roe v. Wade, 410 U.S. 113, (1973) . 8,9,18

Rogers v. Okin, 478 F.Supp. 1342

¢D Mase. 1971), aff'd in part,

rev'd in part, & renended, 634 9,22,23,

F.2d 650 tist. Cir, bo 0 27,31,54

Table of Authorities Continued

Cases Page No.

Rogers v. Okin, 634 F.2d 650

Tse Cir. 1980), cert granted

No. 80-1417 (April 20, I98I) . 7,9,32,34,

- > fey |

Runnels v. Rosendale, 499 F.2d

t v. BD) vei. teiby 6p 7

Schecter Corp. v. U.S., 295 U.S.

195 (1935) . 7 >. . . >. . . >. . 51452

Schloendorff v. Soctecy of N.Y.

sp ta s, e4e ’

RD: ee 8 ge % ‘ 11

Scott v. Plante, 532 F.2d 939

CNG aes BPIO) kes. s 0 2 cles 7,8,10,

17,19,27,

Shapiro v. Thompson, 194 U.S.

. ig BE eg ee eee eee ee 26

Skinner v. Oklahoma, 316 U.S. 535

* . . 7 ae Je ©. sae ee, S72 ee 12

Snyder v. Mass.,.291 U.S. 97

4) 7 7 . A. Re ieee LE Ree . . . 14

Souder v. yepuire 1 F. ss eg

a. 1976) she . Tcxe

Specht v. Patterson, 386 U.S.

7 _ . >. oy jl HO Ree re 57

Superintendent of Belchertown

Vv. Saikewicz, 373 Mass. 726

370 N.E.2d G17 (1977) . . . . 7,10,16,21,

33,57,58

Table of Authorities Continued

Cases Page No.

Union Pacific R. Co. v. Botsford,

SOE Cals JE CROOAP 0 0 a8. ere ae

United States v. Reidel, 402 U.S.

ee Ee Oh A bode 8 1 wise 18, 21

Vecchione v. Wohlgemuth, 377

F.Supp. 1361 (E.D. Pa. 1974) . . 31, 32

Vitek v. Jones, 445 U.S. 480 ts

Winters v. Miller, 446 F.2d 65

r.), cert. denied 404

pe wee APE EP o ¢ 0.0 0. 6. 0. 0 20a,

43,46

Wolff v. McDonnell, 418 U.S.

539 (1974) . >. .* . . . . . >. — . 29, 30

Zoski v. Gaines, 206 N.W. 99

(Mich. 1935) * . . - . >. * 7 *. 47

Articles and Books

Berger, Hamburg and Hamburg, "Mental

Health: Progress and Problems,"

106 Daedulus 261 (1977) ..... 39

Cantor, "A Patient's Decision to

Decline Lifesaving Medical

Treatment: Bodily Integrity

v. The Preservation of Life," 26

Rutgers Law Review 228, 242 (1973). 14

Diagnostic and Statistical Manual

oF Mental Disorders, American

ose Association, 3d ed.

Ce. GMS, ate te wie) © eyes 0 20,55%%

xii.

Table of Authorities Continued

Articles and Books Page No.

Hanslowe, "Regulation by Visible

Public and Invisible Private

Government," 46 Texas Law Rev.

88 (1961) . 7 . 7 . . . . . 53

Liebmann, "Delegation to Private

Parties," 50 Ind.L.J. 657 (1975) 54

Rawls, J., A Theory of Justice ,

(1971) . > * > > .* . . *. . . > . 34

Robertson, "Organ Donations by

Incompetents and the Substituted

Judgment Doctrine," 76 Colum.L.

Rev. 48 (1976) .....-. sora oe

"State Laws Governing Civil

Commitment ,"" 3 M.D.L.R. 206

CEST I? os: Awl eee be) 666 ee Oe

Van Putten & Ray, "Subjective

Response as a Predictor of Outcome

in perme ea | 35 Arch. Gen.

Psychiatry 477 (1978) ...... 24

Van Putten, "Why Do Schizophrenic

Patients Refuse to Take Their

Drugs?" 31 Arch. Gen. Psychiatry

Ge Rare) Sek). ew & ue 8 0 8. 6 8 24

Warren, David G., Problems in

Hospital Law (3d ed. 1978)... 45,47

Wirtz, "Government by Private

Groups," 13 La.L.Rev. 440 (1953) 53

Statutes and Regulations

Calif. Admin. Code, Title 9, §813 . 49

M.G.L.A., c.123, §53 (1980) .... 49

M.G.L.A., c.19, §10 (1980) .... 49

xiii.

Table of Authorities Continued

Miscellaneous Page No.

Public Hearings on Psychiatric

s, July ; » oan

Francisco, California... . 24

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

MARK MILLS, et al.,

Petitioners,

RUBIE ROGERS, et al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the First Circuit

BRIEF FOR

PATIENTS' RIGHTS ADVOCACY SERVICES, INC.

AS AMICUS CURAIE

INTEREST OF AMICUS CURAIE

Patients’ Rights Advocacy Services

("PRAS") is a non-profit corporation com-

posed of patients’ rights advocates and

attorneys who represent mental patients in

San Francisco when they complain of viola-

tions of their rights under federal and

California law. PRAS is funded, in part,

y #

by the National Institute of Mental Health

to engage in law reform activities in the

area of mental health patients’ rights. It

also provides advocacy services which are

mandated by the State of California.

Among the complaints received by PRAS

over the course of the last three years,

complaints concerning the forcible admin-

istration of anti-psychotic medications are

by far the most common and the most diffi-

cult to resolve. The psychiatric profession

in California recognizes no right to refuse

anti-psychotic medication among involun-

tarily committed patients, and patients

frequently find that their complaints to

hospital staff concerning side effects are

interpreted as psychosomatic symptoms of

their illness. Advocates at PRAS, acting

on behalf of the patients, are left with

well-reasoned cases in other jurisdictions

and disputed ethical standards of the psy-

chiatric profession as tools for negotia-

tion.

At public hearings on psychiatric

drugs, recently held in San Francisco,

several authorities, representing both

sides of the issue, recognized the unbri-

dled abuses of these medications in

California, the alarming nature of their

side effects, and the need for resolution

of the legal issues involved.

Amicus seeks an affirmation from this

Court of the fundamental right of its

clients to resist the forcible adminis-

tration of these dangerous drugs which

they, themselves, so often consider a pro-

found invasion of their privacy and an

affront to their dignity.

SUMMARY OF ARGUMENT

Involuntarily committed mental patients,

have a fundamental right in a non-emergency

to refuse medication based in the Constitu-

tional right to privacy, right to bodily

integrity and the right to freedom of

thought.

The state must therefore show a compel-

ling interest in overriding these rights.

The cases consistently show that the state

has no interest in depriving patients of

these rights in a non-emergency.

Moreover, the state is not granted the

authority to forcibly medicate patients as

part of the authority to commit them. The

right to refuse medication is a fundamental

right, and the state must comply with the

requirements of procedural due process be-

fore the right can be denied. Commitment

hearings are insufficient for that purpose

in Massachusetts because forcible medica-

tion constitutes a major change in confine-

ment and requires additional due process

considerations.

Moreover, the state cannot constitu-

tionally deprive patients of their funda-

mental right to refuse medication by pre-

suming their incompetence once committed.

Involuntarily committed patients are pre-

sumed to be competent under the law of

Massachusetts and other states. In addi-

tion, the requirements of due process do

not end with a determination of incompe-

tence. A court must, as a requirement of

due process, exercise a "substituted judg-

ment” for those patients who are found in-

competent.

In addition, the First Circuit Court

of Appeals’ expansion of the District

Court's emergency standard is unconstitu-

tional since forcible medication to prevent

mental deterioration is an unconsitutional

exercise of state power. Courts have held

that the state cannot constitutionally act

under its police power to forcibly medicate

involuntarily committed patients in a non-

emergency; and under its parens patriae

authority the state may only act when a

patient has been found incapable to decide

and in imminent physical danger. Moreoever,

forcible medication will do nothing to fur-

ther the state's interest in preventing

further mental deterioration. Finally,

the Ninth Circuit's expansion of the defini-

tion of emergency to include the concept of

psychiatric emergency is an unconsitutional

delegation of power. The result is an un-

bridled discretion in the hands of psychia-

try, and a usurption by that profession of

the judicial power to decide the patients’

right to fundamental due process.

ARGUMENT

I. THE STATE OF MASSACHUSETTS IS

CONSTITUTIONALLY BARRED IN

NON-EMERGENCY SITUATIONS FROM

ADMINISTERING DANGEROUS PSY-

CHOTROPIC MEDICATIONS TO

INVOLUNTARILY COMMITTED MENTAL

PATIENTS AGAINST THEIR WILL.

A. Forcible Medication Of Invol-

untarily Committed Mental

Patients Violates Fundamental

Rights Guaranteed To Them By

The Constitution Of The

United States

1. Forcible medication of involuntari-

ly committed mental patients violates their

fundamental right to privacy in decisions

concerning their own bodies. Courts through-

out the country have held that all patients

have a fundamental right to privacy in de-

ciding whether or not to submit to medical

treatment. Rogers v. Okin, 634 F.2d 650

(lst Cir. 1980), cert. granted, No. 80-1417

(April 20, 1981)(hereinafter referred to as

"Rogers II"); Runnels v. Rosendale, 499 F.

2d 733 (9th Cir. 1974); Mackey v. Procunier,

477 F.2d 877 (9th Cir. 1973); Scott v.

Plante, 532 F.2d 939 (3rd Cir. 1976); Rennie

v. Klein, 462 F.Supp. 1131 (D.N.J. 1978)

(hereinafter referred to as "Rennie I");

Davis v. Hubbard, 506 F.Supp. 506 F.Supp.

915 (N.D. Ohio 1980); Pharmaceutical Society

of New York v. Lefkowitz, 454 F.Supp. 1175

(S.D.N.¥. 1978), aff'd 586 F.2d 953 (2d

Cir. (1978); Souder v. McGuire, 423 F.Supp.

830 (M.D. Pa. 1976); In re K.K.B., 609 P.2d

747 (Okla. 1980); Guardianship of Roe,

Mass. _, 421 N.E.2d 40 (1981); Goedecke

v. State Dept. of Institutions, 603 P.2d ’

123 (Co. 1979); In re Quinlan, 70 N.J. 10,

355 A.2d 646 (1976); Superintendent of

Belchertown v. Saikewicz, 373 Mass. 728,

370 N.E.2d 417 (1977), Kaimowicz v. Mich.

Dept. of Mental Health, No. 73-19434 A.W.,

42 U.S.L.W. 2063 (Mich. Cir. Ct., Wayne

County, Mich., July 10, 1973).

The fundamental right to privacy

exists in the penumbra of rights specifi-

cally enumerated in the Bill of Rights.

Griswold v. Connecticut, 381 U.S. 479

(1965). This Court, in articulating the

right to privacy, has looked to liberty

interests contained in the First Amendment

freedom of thought, Stanley v. Georgia,

394 U.S. 557 (1969) and the Fourteenth

Amendment right to bodily integrity. Roe

v. Wade, 410 U.S. 113 (1973).

Forcible administration of anti-psy-

chotic drugs in a non-emergency is inimi-

cal to both the right to freedom of thought

(Scott v. Plante, supra) and the right to

bodily integrity (Rennie v. Klein, Nos. 79-

2576 and 79-2577 (3rd Cir., July 9, 1980)

(hereinafter referred to as "Rennie II).

After examining these Constitutional

underpinings in Roe, this Court concluded

that the fundamental right to privacy is

“broad enough to encompass a woman's de*i-

sion whether or not to terminate her preg-

nancy." Roe v. Wade, supra at 153. In

arriving at that conclusion the Court con-

sidered the fact that "[s]pecific and di-

rect harm. . . may be involved." Id. at

153. Specifically, they noted the potential

for physical and psychological harm and

social stigma that could last a lifetime.

The District Court below made specific

findings concerning the immediate and future

harm caused by anti-psychotic medications.

Rogers v. Okin, 478 F.Supp. 1342, 1360 (D.

Mass. 1971), aff'd in part, rev'd in part,

and remanded, 634 F.2d 650 (lst Cir. 1980)

(hereinafter referred to as "Rogers I").

The court found that the drugs influence

chemical transmissions to the brain and are

mind-altering, and described a whole series

of immediate neurological side effects which

have led another court to describe these

drugs as "painful and frightening," Souder

v. McGuire, supra at 832.

In addition, the court noted signifi-

cant side effects involving physical

10.

neurological damage which is irreversible,

and which may result in serious psycholo-

gical and physical disabilities. Foremost

among these side effects found is tardive

dyskenisia. Tardive dsykenisia is a

disease characterized by involuntary move-

ment, which can interfere with swallowing

and effect all motor activity. The court

pointed to two studies which showed the in-

cidence of tardive dyskenisia among chron-

ically hospitalized schizophrenics to be

between 502% and 56z.—1/

For these reasons, the right to priva-

cy articulated in Roe is broad enough to

encompass a patient's decision as to whether

to accept or to refuse anti-psychotic medi-

cations. Scott v. Plante and Davis v.

Hubbard, supra. Consequently, the First

Circuit Court of Appeals, below, reasoned

soundly when they stated:

_1/ See Rennie I, supra at 1300-1303 for that

court's findings for the specific effects of

forced medication on the individuals involved in

that case.

1l.

We begin our yee with

what seems to us to be an intui-

tively obvious proposition: a

person has a pseenb agines omg

protected interest in being left

free by the state to decide for

himself whether to submit to the

serious and potentially harmful

medical treatment that is repre-

sented x A the administration of

antipsychotic drugs. .. . [T]his

interest exists, most likely as

part of the penumbral right to

privacy, bodily integrity or

personal security.

None of the parties or amici

in this suit contest the

correctness of this general pro-

position. Rogers II, supra at

653-654 (citations omitted). 2/

2. Forcible medication of involuntar-

ily committed mental patients violates their

fundamental right to bodily privacy and

personal security guaranteed by the Four-

teenth Amendment to the United States Consti-

tution. This right traces its origin to

tort law principles enunciated in Canterbury

v. Spence, 150 U.S.App.D.C. 263, 464 F.2d

772 (D.C. Cir.), cert. denied 409 U.S. 1064

(1972) and Schloendorff v. Society of N.Y.

2/ Despite this contention by the court, Petitioners

argue on page 17 of their brief that Respondents

have no constitutional right to refuse medication.

12.

Hospitals, 211 N.Y. 125, 105 N.E. 92, 93

(1914) where Justice Cardozo stated:

"Every human being of adult years or sound

mind has the right to determine what shall

be done with his own body." See also, Union

Pacific R. Co. v. Botsford, 141 U.S. 250

(1891).

In Ingraham v. Wright, 430 U.S. 651

(1977), this Court recognized that this

right, held so sacred and so carefully

guarded by the common law, is a liberty in-

terest protected by the Due Process Clause

of the Fourteenth Amendment. The Court held:

Among the historic liberties

was a right to be free from

and to obtain judicial relief

for unjustified intrusions on

personal security.

While the contours of this

historic liberty interest in

the context of our federal

system of government have not

been defined precisely, they

always have been thought to

encompass freedom from bodily

restraint. . .. See Rochin v.

California, 342 U.S. 1

Id. at 672. In support of that Due Process

right, the Court cites Skinner v. Oklahoma,

316 U.S. 535 (1942), Jacobson v. Mass., 197

13.

U.S. 11 (1905), and Union Pacific R. Co. v.

Botsford, supra.

Moreover, it is clear that this right

to bodily integrity and personal security is

a "fundamental" right. See Rochin v. Calif.,

supra at 169. One authority has concluded

that "no more basic aspect of personal pri-

vacy can be found than bodily integrity, and

this interest is entitled to concommitant

constitutional protection." Cantor, "A Pa-

tient's Decision to Decline Lifesaving Med-

ical Treatment: Bodily Integrity v. The

Preservation of Life," 26 Rutgers Law Review

228, 242 (1973).

Consequently, in these cases, this

Court has weighed the extent of bodily harm

and intrusiveness against the state interests

involved. In Rochin, supra, the Court was

faced with a situation where contraband had

been forcibly pumped from the stomach of a

protesting defendant. The Court looked to

the force and brutality used in that case

and analyzed the law in this way:

14.

Due process of law is a summarized

constitutional guarantee of a res-

pect for those personal immunities

which, as Mr. Justice Cardozzo

twice wrote for the Court are ‘so

rooted in the traditions and con-

science of our people as to be

ranked as fundamental,’ Snyder v.

Massachusetts, 291 U.S. 97, I05,

or are “implicit in the concept

of ordered liberty.' Palko v.

a tae to U.S. 319, 325.

- at °

It does not fairly represent these

decisions to senpest that they le-

galize force so brutal and so

offensive to human dignity in

securing evidence from a suspect

as is revealed by this record.

(Id. at 174.)

In Breithaupt v. Abram, 352 U.S. 432

(1957), the Court recognized that same Due

Process right, citing Rochin. In that case

a blood test was performed on an unconscious

defendant in order to determine criminal

liability for drunken driving. The Court,

however, found no evidence of harm, brutali-

ty or violation of human dignity in per-

forming a routine blood test on an uncon-

scious defendant. On the other hand, the

Court found a compelling state interest in

preventing deaths on the highways. Id. at

15.

435, 436. For these reasons, the Court up-

held the lower court's criminal conviction.

In Jacobson, supra, the Court ruled

on a Massachusetts statute which required

all citizens to submit to a smallpox

vaccination. On the facts of that case

the Court held that the "police power of

a state" (Id. at 38) overrode the Four-

teenth Amendment right because of the

important state interest in controlling

a smallpox epidemic. However, the Court

clearly indicated that the result hinged

on the fact that no case of harm to the

individual had been presented. They

even went so far as to read a gloss onto

the statute to preserve the fundamental

Fourteenth Amendment right to bodily

integrity involved in that case:

[Wje are not inclined to

hold that the statute es-

tablishes the absolute rule

that an adult must be vac-

cinated if it be apparent

or can be shown with reasonable

certainty that he is not at the

time a fit subject of vaccina-

16.

tion, or that vaccination, by

reason of his then condition

would seriously impair his health.

Id. at 38, 39.

This right has been used to uphold the

refusal by patients of medical intervention

in other contexts. In Saikewicz, supra at

424, the court recognized a right of an in-

competent mentally retarded person to refuse

chemotherapy for leukemia based upon that

person's right to bodily integrity and per-

sonal security. In Kaimowitz, supra, the

court held that non-consensual experimental

psychosurgery performed on a mental patient

constitutes a violation of bodily integrity.

In balancing the interests accord-

ing to the principles enunciated in these

cases, it is clear that forcible administra-

tion of dangerous anti-psychotic medications

to unwilling mental patients violates their

Due Process right to bodily integrity and

personal security.

As noted above these drugs cause

serious side effects which are frightening

and immediate. They also cause physical and

17.

psychological damage which is irreversible

for significant numbers of people. For

these reasons, in Guardianship of Roe, supra

at 52, the court stated: "We can identify

few legitimate medical procedures which are

more intrusive than the torcible injection

of anti-psychotic medication." Certainly,

the forcible administration of these drugs

is more intrusive, more violative of bodily

integrity, personal security and human dig-

nity than an almost risk-free and painless,

routine blood test or the equally risk-free

vaccination for smallpox.

Moreover, it has been consistently

held that the state has no interest in for-

cibly medicating mental patients in non-

emergency situations. See Argument IB,

below.

Consequently, based upon the right to

bodily integrity and personal security, the

courts below and other courts have upheld

the right of mental patients to refuse anti-

psychotic medications. Rennie I, supra and

Scott v. Plante, supra.

18.

3. Forcible medication of involuntar-

ily committed mental patients violates their

First Amendment right to the free generation

of ideas.

In 1919, the Court stated that the

First Amendment meant that the government

does not have the power to control men's

minds. Abrams v. United States, 250 U.S.

616, 630 (1919). In O'Connor v. Donaldson,

422 U.S. 563, 575 (1975), the Court stated

that a state could not constitutionally

"fence in the harmless mentally ill solely

to save its citizens from those whose ways

are different." The cases of Olmstead v.

United States, 27 U.S. 479 (1928); Stanley

V.Georgig, supra; Roe v. Wade, supra; and

United States v. Reidel, 402 U.S. 351 (1971)

have all found a fundamental right to pri-

vacy in the realm of thought and decision.

The District Court in this case applied

the principlws of those cases and held that

the forcible administration of anti-psycho-

tic drugs violated mental patients’ First

19,

Amendment right to think in that those drugs

“affect and change a patient's mood, atti-

tude and capacity to think.” Rogers I, supra

at 1366. The court in Rogers stated:

Without the capacity to think,

we merely exist, not function.

Realistically, the capacity to

think and decide is a fundamen-

tal element of freedom.

Id. at 1367. Im Mackey v. Procunier, supra

at 877 forcible administration of a drug in

connection with shock therapy was held to be

an “impermissible tinkering with the mental

process" in violation of the First Amendment.

See also In re Quinlan, supra.

Similarly, the state's institutional

concerns for order and control are insuffi-

cient to override the patients’ fundamental

right to refuse anti-psychotic medications.

Nelson v. Heyne, 355 F.Supp. 451 (N.D.

Indiana 1973).

Moreover, the state's obligation to

provide treatment (see O'Connor, supra) can-

not be interpreted as a state's interest

which overrides the patient's fundamental

26.

rights. See Rogers I, supra.

C. The State Of Massachusetts Cannot

Constitutionally Deprive Mental

Patients Of The Right To Refuse

Medication By Merely Committing

Them Against Their Will.

1. Commitment hearings in Massachu-

setts do not comport with what due process

requires before the right to refuse medi-

cation can be denied. The cases cited in

Argument IB, above, clearly establish that

involuntarily committed mental patients

have a fundamental Constitutional right

to refuse medication. It is axiomatic that,

as a matter of substantive due process, a

state must show a compelling interest in

otder to deny a fundamental right. Shapiro

v. Thompson, supra.

Consequently, just as a state must

comply with the requirements of due process

in depriving a mental patient of the funda-

mental right to liberty (Doremus v. Farrell,

407 F.Supp. 509, 514 (D.Neb. 1975); Lessard

v. Schmidt, 349 F.Supp. 1078 (E.D. Wis.

1972); Lynch v. Baxley, 386 F.Supp. 378

(M.D. Ala. 1974)), so must a state comply

27.

with the requirements of due process in de-

priving a mental patient of the fundamental

rights of privacy and bodily integrity

which are involved in the patient's deci-

sion to refuse or accept anti-psychotic

medication. Rennie II, supra at 13; Scott

v. Plante, supra at 946; Winters v. Miller,

446 F.2d 65 (2nd Cir.), cert. denied 404

U.S. 985 (1971); Covington v. Harris, 419

F.2d 617, 624 (D.C. Cir. 1969); Davis v.

Hubbard, supra at 938.

Moreover, it is clear that an adjudi-

cation authorizing commitment does not per

se authorize the forcible administration

of anti-psychotic medications. The state's

interests which might override a patient's

right to liberty do not also override the

patient's right to refuse medication. As

the court pointed out in Rogers I, supra:

The patient is in an insti-

tution only because he is

unable to function safely

in society, and so there is

a public interest in civil

commitment. Id. at 1367.

After commitment, the balan-

cing of state versus patients'

28.

interests must be done in the

context of the community setting.

That the state may forcibly

medicate a committed patient

given an emergency that threatens

the physical safety of patients

and staff -- the institutional

community -- is not the issue.

Such action is necessary to pro-

tect the members of that commun-

ity and is consistent with the

basic rationale relied on in

Jacobson. Given a non-emergency,

ever, it is an unreasonable

invasion of privacy, and an

affront to basic concepts of

human dignity, to permit forced

injection of a mind-altering

drug into the buttocks of a

competent patient unwilling to

give informed consent. That

type of treatment is not neces-

sary to protect the general

public, since the patient has

already been quarantined by com-

mitment. Of course, there being

no emergency, the hospital com-

wage? s in no danger. Id. at

The Court in Davis v. Hubbard, supra, comes

to the same conclusion, reasoning from the

principles enunciated in O'Connor, supra:

Having been institutionalized,

they [patients] no longer pre-

sent a danger to society and,

indeed, may not present a danger

to those in the institution.

To the extent this is true,

O'Connor suggests that such pa-

ents cannot further be de-

prived of constitutionally pro-

tected interests by treating

29.

the symptoms of an illness

with drugs merely because the

symptoms of the illness are

strange and eccentric behavior.

In other words, if not dangerous,

something more than the fact of

mental illness is required be-

fore the state may ignore the

patient's interests.

Davis v. Hubbard, supra at 936, n.27. See

also Addington v. Texas, 441 U.S. 427 (1979).

The reasoning of these cases indicates

that mental patients do not automatically

lose all of their rights upon being commit-

ted. It is clear that the patient "re-

tain[s]) a residuum of liberty that would be

infringed by compulsory medication ‘without

complying with minimum requirements of due

process.’ Vitek v. Jones, 445 U.S. at 491."

Rennie II, supra at 13.

The court in Rennie II reasoned that

just as “solitary confinement ‘represents

a major change in the conditions of con-

finement' in a prison setting, Wolff v.

McDonnell, 418 U.S. at 571-72, n.19, so

“compulsory medication of a non-consenting

patient with its concomittant risks must be

30.

deemed a ‘major change in the conditions of

confinement.'" Id. at 13 and 14. See also

Morrissey v. Brewer, 408 U.S. 471, 482

(1972) .-6/

The Court has held that prisoners are

not stripped of all of their rights when

confined in a prison, Wolff v. McDonnell,

418 U.S. 539, 555-556 (1974), and so the

court in Rennie II has concluded that "the

Constitution is at least as viable behind

the walls of a psychiatric hospital as in

a prison." (citations omitted) Id. at 19.

2. The State of Massachusetts may not

deprive involuntarily committed mental

patients of their right to refuse medica-

tion by presuming their incompetence.

The vast majority of cases ruling on

the point presume involuntarily committed

mental patients to be competent. Rogers II,

supra at 659;-Rennie II, supra at 19; Colyar

6/ There is dictum to the contrary in Price v.

rd, 307 Minn. 25, 239 N.W.2d 905,

(1976)

31.

v. Third Judicial District Court for Salt

Lake County, 469 F.Supp. 424 (D.Utah C.D.

1979); Cameron v. Mullen, 128 U.S.App.D.C.

235, 244, n.29, 387 F.2d 193, 202, n.29 (D.C.

1967); Vecchione v. Wohlgemuth, 377 F.Supp.

1361 (E.D. Pa. 1974); In re Boyd, 403 A.2d

744 (D.C. App. 1979); and In re K.K.B.,

supra. This is also reflected in the sta-

tutes of many states. See "State Laws

Governing Civil Commitment," 3 M.D.L.R. 206

(1979). In addition, the District Court in

this case found that "although committed

mental patients do suffer at least some im-

pairment of their relationship to reality,

most are able to appreciate the benefits,

risks, and discomfort that may reasonably

be expected from receiving anti-psychotic

medications. This is particularly true for

patients who have experienced such medica-

tion . . ." Rogers I, supra at 1361.

Moreover, a determination of incompe-

tence does not automatically deprive invol-

untary mental patients of their right to

32.

to refuse medication. "A state cannot ignore

due process and simply seize a person and

administer drugs to him without his consent."

Rennie II, supra at 13. See also Argument I

C,1, above. While due process requires that

there be a judicial determination of incon-

petence prior to a state's exercise of parens

patriae authority (see Vecchione v. Wohlge-

muth, supra), that determination, alone,

does not comport with what is required by

due process in order to deny mental patients’

right to refuse medication. Rogers II,

supra at 661. The Ninth Circuit in this

case has stated:

{W]e do not imply that the

Constitution places no limits

whatsoever on the manner in which

the state may decide how to

treat incompetent patients.

Id. at 661. See also Argument III, below.

As the court noted in Colyar, supra at 430:

"An individual's diminished capacity should

not and does not affect the protection owed

him when the state attempts to deprive him

of his liberty."

33.

II. FORCIBLE ADMINISTRATION OF DAN-

GEROUS PSYCHOTROPIC DRUGS TO

PREVENT FURTHER MENTAL DETER-

IORATION IS AN UNCONSTITUTIONAL

EXERCISE OF STATE POWER.

A. Legitimate Exercise Of The

State's Emergency Police Powers

Is Not Triggered By The Concept

Of Psychiatric Emergency.

The primary justification for compulsory

confinement of psychiatric patients as a

function of the police power is the protection

of the public from dangerously ill indivi-

duals. See, e.g., Jacobson v. Mass., supra

24, 25. Because the police power protects

the public, it is by nature "the least limi-

table of the exercises of government." Hall

v. Geiger-Jones Co., 242 U.S. 539, 548

(1917). Accordingly, it is because the men-

tally ill individual is presently dangerous

to others that he forfeits his right to refuse

treatment (see Argument I).

However forcible anti-psycho-

tic medication of a patient

in a state hospital is not

necessary to protect the atl

eral public. The public is

protected by commitment. If

there is no emergency, hospi-

tal personnel are in no danger;

the only purpose of forcible

34.

medication in these circum-

stances would be to

the patient. In re K.K.B.,

supra at 751.

Therefore, if the purpose of the state

is to protect the mental health of the indi-

vidual, and not to promote the safety of

others, it must act pursuant to its parens

patriae authority: "The state's purpose in

administering drugs forcibly must be to fur-

ther its police power interests." Rogers II,

supra at 656.

B. A Judicial Determination of In-

capacity To Act Is Required

Before The State Acts As Parens

Patriae.

The parens patriae function is an auth-

ority granted to the state by the members of

the community for the protection of their

future well-being. See J. Rawls, A Theory

of Justice, 248-49 (1971). Accordingly,

when the state acts as parens patriae, it

is not empowered to sacrifice the welfare

of the individual to the welfare of others.

See In re Colah,(The Parsee Merchant's Case)

35.

219-22 (N.Y.C.P. 1871).

Therefore, when the state acts pursuant

to the legitimate exercise of its parens

patriae function, it is authorized to deny

the individual no right. ‘Yhis is critical

to understanding why the state, acting as

parens patriae, is not empowered to admin-

ister dangerous psychotropic medications

on an unconsenting involuntarily committed

patient absent a judicial determination of

incompetence to act. Winters v. Miller,

supra; Scott v. Plante, supra; Coylar v.

Third Judicial District Court, supra. Si-

milarly, the Court of Appeals below was

compelled to conclude:

{[A]bsent an emergency, a

judicial determination of

incapacity to make treat-

ment decisions must be made

before the state may rely

on its parens patriae powers

to coreibly nédtcate a

patient. Rogers II, supra at 661.

Thus, the crucial question is whether or not

the state may forcibly medicate an individu-

al, absent a judicial determination of in-

competence to act, solely because it is

36.

reasonably believed that any delay could re-

sult in significant deterioration of the

patient's mental health.

1. The State has no authority to act

as parens patriae unless the individual's

mental deterioration also poses an imminent

danger to his physical health.

An individual cannot be involuntarily

committed pursuant to the state's parens

patriae authority unless the individual is

dangerous to himself. (O'Conrior v. Donald-

son, supra; In re Ballay, 157 U.S. App. D.C.

59, 482 F.2d 648 (1973); Doremus v. Farrell,

supra; and Lynch v. Baxley, supra. A person

is dangerous to himself not because he is

mentally ill, but because he is unable to

provide himself with the basic necessities

to sustain physical life or because he is

self-assaultive:

An individual who cannot pro-

vide for himself the basic

necessities of life (food,

clothing, shelter) or who in-

flicts physical damage on hinm-

self . . . does pose a threat

*to his own well-being. Coylar,

supra at 430.

37.

Compulsory administration of dangerous

psychotropic drugs to prevent further mental

deterioration, in the absence of a threat

to the individual's physical well-being, al-

lows the state to intrude upon fundamental

rights only because the individual is mental-

ly disordered. (See Argument I.) The state

is clearly prohibited from thrusting treat-

ment on an individual only because he is

diagnosed mentally disordered. O'Connor,

supra.

Moreover, since legal incapability to

decide whether or not to accept treatment

is a threshold requirement when the state

acts as parens patriae, even if a mentally

disordered individual does pose a threat to

his physical well-being, but nonetheless re-

mains competent to make a treatment decision,

the state cannot constitutionally interfere:

The state's interest in pro-

tecting him from harm does

not outweigh the competent

individual's right to make

and La out what is perhaps,

one of the most important de-

cisions of his life.

38.

Coylar, supra at 432; cf. Winters, supra.

2. The concept of psychiatric emer-

gency will not further the state's interest

in preventing further mental deterioration

or chronicity of mental disorder.

The State of Massachusetts’ forecast

that the right to refuse dangerous psycho-

tropic drugs will result in deterioration

of psychiatric patients’ mental health, in-

cluding increased psychic suffering and in-

creased chronicity of mental disorder, is

unfounded. The class of individuals whose

mental disorders are responsive to crisis

intervention in the form of forced admin-

istration of psychotropic drugs are already

subject to forced medication pursuant to the

rightful exercise of the state's police

power .—_/ The state is empowered to forcibly

7/ It is important to stress that psychiatrists do

fot treat violence. Rather, they treat mental dis-

orders. However it is the presence of violence or

the threat of violence that empowers the state,

through psychiatrists, to act in the absence of a

judicial proceeding. (See Argument II, infra.) That

the state acts pursuant to its police power does

not mean that the action taken is not de facto in

the individual's, as well as society's, best interest.

39.

medicate these individuals because they in-

evitably present exhibiting violent be-

havior. _8/

However, the class of patients the

state claims it must treat as a result of

psychiatric emergency do not therapeutical-

ly respond to the forced administration of

psychotropic drugs. As pointed out by the

State of Massachusetts:

About half of the available

hospital beds for mentally ill

and mentally retarded patients

(and one-quarter of all avail-

able hospital beds) are occupied

by schizophrenics.

Petitioner's Brief at p.24, citing Berger,

Hamburg and Hamburg, "Mental Health: Pro-

gress and Problems," 106 Daedalus 261

8/ See DSM-III (a manual which is used by virtual-

ly every agency of the Government to diagnose men-

tal disorder). See generally "Substance-Induced

Organic Mental Disorders,” pp. 128-36, including

$§ 303.00, 291.40, 291.30, wherein are described

the type of disorders responsive to forced drug

administration. These disorders are character-

ized by aggressive, beligerent, physically

assaultive behavior, that is etiologic specific.

Recovery occurs within a matter of days.

40.

(1977); J.A., p.207 (J.-166). The signifi-

cance of this important observation is that

in order to make a diagnosis of schizophre-

nic disorder, a finding of substantial de-

terioration from a previous level of func-

tioning must be made. (See DMS-III, supra

at 181-182.) Therefore, should the concept

of psychiatric emergency be adopted by this

Court, all chronic, severely psychotic indi-

viduals, including but not limited to those

with schizophrenic disorders, will be forci-

bly medicated only because they are "men-

tally disordered." That the state cannot

invade fundamental rights only because an

individual is mentally ill is axiomatic.

(O'Connor, supra.)

Furthermore, the contention that se-

vere disabling psychotic disorders, includ-

ing the schizophrenic disorders, have an

initial phase, wherein the immediate admin-

istration of anti-psychotic drugs will pre-

vent substantial mental deterioration or

chronicity, is insupportable. (See DSM-III,

41.

supra at pp. 181,184, and 185.) The primary

characteristic of the schizophrenic disor-

ders is that the course of illness is chro-

‘nic and cyclic, In almost every case, |

periods of substantial deterioration fol-

lowed by remissions occur no matter what form

of treatment is prescribed: "A complete re-

turn to premorbid functioning is unusual --

so rare, in fact, that some clinicians would

question the diagnosis." Id, at 185. It was

precisely this observation that led the court

in Rennie v. Klein, 476 F.Supp. 1294, aff'd

in part, rev'd in part, Nos. 79-2576, 79-2577

(3rd Cir. July 9, 1981), cert.denied, U.S.

__, 110 S.Ct. 3059, 69 L.Ed.2d 425 (1981)

to conlude: "Many patients who would nor-

mally be treated with anti-psychotics can

improve without them... " Rennie v.

Klein, 476 F.Supp. at 1298. See also Davis,

supra at 936,937 and In re K.K.B., supra at

748.

However, the APA has set forth what

care individuals require during the deter-

42.

iorative phases of psychiatric disorders:

Supervision may be required

to ensure that nutritional

and hygienic needs are met

and to protect the individual

from the consequences of poor

judgment. DSM-III at 185. 9/

3. Expansion of the definition of

emergency to include the concept of psychia-

tric emergency denies involuntarily commit-

ted patients equal protection of the laws.

The definition violates involuntarily

committed patients’ right to equal protec-

tion because it draws a purposeless distinc-

tion between physically deteriorating medi-

cal patients and psychologically deterior-

ating psychiatric patients .22/ The State of

Massachusetts attempts to avoid the stric-

tures of equal protection by interposing the

9/ The importance of ensuring that the individual's

ic physical safety and dignity needs are attended

to is repeated throughout the manual wherever severe,

chronically disabling psychotic disorders are des-

cribed. See, e.g., DSM-III, §§ 295.1x; 295.2x.

10/ “Equal protection does not require that all per-

sons be dealt with identically, but it does require

that a distinction made have some relevance to the

purpose for which the classification is made."

Baxstrom v. Herold, 383 U.S. 107, 111 (1966).

43.

concept of psychiatric emergency. However,

the attempt fails because the only rational

distinction that can be drawn between a

psychiatric patient and a medical patient

is incompetence to act. As a result, state

action which utilizes the presence or ab-

sence of mental disorder, rather than inca-

pability to act, to separate those who may

be treated from those who may not, fails to

provide a rational basis for such disparate

treatment. Winters, supra and Lessard,

supra, This contention is based on the no-

tion that individuals may not be deprived

of their freedom solely because they are

mentally ill. O'Connor, supra.

The concept of psychiatric emergency

does nothing to salvage the irrational dis-

tinction because it fails to distinguish

between a mentally deteriorating patient

who is capable of making a treatment deci-

sion and a mentally deteriorating patient

who is not. As a result, acceptance of

the concept of psychiatric emergency would,

44,

in practice, amount to a presumption that

an individual is incapable to act solely

because the state reasonably believes

that the administration of dangerous psy-

chotropic drugs is medically indicated to

prevent further mental deterioration.

Such action clearly denies involuntarily

committed patients equal protection because

it fails to "leave room for the individual

who would rather remain free of therapeutic

intervention even though that freedom is

obtained at the price of diminished func-

tional capacity." Coylar, supra at 434;

cf. O'Connor, supra.

To accept the notion that involun-

tarily committed patients may be forcibly

medicated to prevent further mental deter-

ioration, compels the conclusion that the

state could, acting as parens patriae,

force a cancer victim to submit to danger-

ous chemotherapy only because the state

believed such forced administration of

drugs might prevent further metastisis.

45.

Finally, in order to understand why

the concept of psychiatric emergency fails

to make a rational distinction between psy-

chologically deteriorating psychiatric pa-

tients and physically deteriorating medical

patients, one need only explore the rela-

tionship between medical treatment and the

concept of emergency. Because psychiatry

is a discipline of medicine, its authori-

ty to render treatment is likewise circum-

scribed:

Medical treatment is a service

erformed on an individual who

as requested or permitted it

or whose condition requires it.

Those who provide or perform

the service should do so only

when it is authorized by the

patient or by law. Warren,

David G., Problems in Hospital

Law (3rd ed. 1978).

Therefore, the authority of the psy-

chiatrist to proceed in emergencies that

implicate only the patients’ interests, in-

cluding the administration of dangerous

psychotropic drugs to prevent further men-

tal deterioration, assumes "that the

patient has not expressly refused the

46.

treatment." Id. at 155. Consequently,

courts have consistently held that an

adult patient who is concsious and men-

tally capable has the right to refuse any

medical procedure. (See Argument I.)

Moreover, courts have repeatedly

emphasized that the legally capable pa-

tient's refusal may not be disregarded only

because such refusal is not in the pa-

tient's best medical interests .+2/ This

notion is so axiomatic that the courts are

restrained from ordering a blood transfu-

sion solely to protect the patient's health,

even though the patient's refusal approxi-

mates the taking of his own life. (See,

e.g., Erickson v. Dilgard, 44 Misc.2d 27,

252 N.Y.S.2d 705 (1962).

11/ The legally capable individual's refusal to

accept treatment must be honored whether such re-

fusal is grounded upon the doubt that the contem-

plated treatment will not be successful, a concern

about the probable or possible results of such treat-

ment, a lack of confidence in the physician, a

religious belief, or a mere whim. See, e.g.,

Winters v. Miller, supra and In re Brooks Estate,

37 Til.2d 361, 205 NE2d 435 (1965).

47.

Clearly, then, the two factors needed

to establish an emergency that negates the

need for consent are not present in the con-

cept of psychiatric emergency:

[Flirst, the inability of the

atient or someone on his be-

alf to give consent, and,

second, a threat to the life

or health of the patient which

is deemed to be an immediate

pag Problems in Hospital

aw, supra at 155. (Emphasis

added) 12/

4. Expansion of the definition of

emergency to include the concept of psy-

chiatric emergency is an unconstitutional

12/ The concept of psychiatric emergency not only

fails to permit a legal determination of incapabil-

ity to act, it also fails to present the requisite

degree of immediacy of harm implicit in the concept

of emergency. The courts early on defined the de-

gree of harm required to create a medical emergency.

No medical emergency exists unless there is a threat

of irreversible harm. See, e.g., Zoski v. Gaines,

260 N.W. 99 (Mich. 1935). There is no evidence in

the literature to demonstrate that delay in the ad-

ministration of psychotropic drugs presents even a

substantial possibility of harm. To the contrary,

the weight of evidence demonstrates that immediate

forced administration of dangerous psychotropic

drugs not only fails as a means of curative interven-

tion, but that such action fails to meet the care

and treatment needs of the class of mentally dis-

ordered individuals that the State of Massachusetts

seeks to protect. (See Argument IIB, supra.)

48.

delegation of legislative power.

Expansion of the definition of emer-

gency to include the concept of psychiatric

emergency violates the Constitution's ban

on delegation because it fails to insure

that the fundamental policy decisions in

our society will be made not by an appointed

official but by the body immediately res-

ponsible to the people. Nor does it prevent

judicial review from becoming merely an

exercise at large, because it fails to pro-

vide the courts with some measure against

which to judge the official action that has

been challenged. See Arizona v. California,

373 U.S. 546 at 626 (1963),(Harlan, J.,

13/

dissenting in part).

That the legislature is constitution-

ally empowered to pass laws designed to

13/ This statement is an exegesis on the non-dele-

gation doctrine's relationship to the separation of

powers. However, the same functions are performed

by the Due Process Clause. The ban on delegation

sprang from the Fifth Amendment's Due Process Clause.

As such, its application to the state's is really a

function of fundamental fairness, acting as a bar

against unbridled discretion.

49,

safeguard the health, safety and morals of

the people cannot be questioned. 24/ But the

14/ Massachusetts has an interest in ensuring that

Individuals who are committed to its psychiatric in-

stitutions are given the opportunity to receive the

most expert care possible. As a result, the State

of Massachusetts, as virtually every other state in

the Union, has promulgated statutes that either im-

plicitly or explicitly delegate decision-making power

to private psychiatry. See, e.g., ch. 123, §53,

M.G.L.A. (1980)[Qualifications of physicians certi-

fying mental illness; copies of certificate]; ch. 19,

$10, M.G.L.A. (1980)[Programs for training of resi-

dents in psychiatry, etc.].

As a result of this delegation of decision-

making power, it is the APA who determines what

diagnostic criteria is legally required before an

individual can be legally deemed mentally disorder-

ed. Noteworthy is a7 fact that the State of

California explicitly delegates this power to the

APA in Title 9 of its Administrative Code which in

pertinent part reads: Mental Disorder.

For the purposes of Division 5

of the Welfare & Institutions

Code, “mental disorder" means.

any of the mental disorders as

set forth in the Diagnostic and

Statistical Manual of Mental

Disorders (Current Edition of the

American Psychiatric Association).

(Cal. Adm. Code, §813.)

Therefore, unless the APA determines that an

individual's behavior is mentally disordered, the

individual cannot be legally committed. Moreover,

since individuals must = diagnosed according to

the latest standards defining mental disorder, an

individual who was mentally disordered under DSM-II

criteria (DSM-III's predecessor), may not be dis-

ordered under DSM-III criteria. The result is that

each edition of the APA's diagnostic and statisti-

cal manual has the force of positive law. Each

manual's criteria supercedes the former's. As a

50.

expansion of the definition of emergency to

include the concept of psychiatric emergen-

cy allows the legislature to delegate rule-

making powers that it cannot. Could the

legislature enact a statute stating that

private psychiatry is Constitutionally em-

powered, in the absence of any legal con-

fines whatsoever, to forcibly administer

dangerous psychotropic drugs if the DSM-III

indicates such action is medically reason-

able?

(Footnote 14 continued)

result, the APA's criteria defining the various men-

tal disorders is directly read into the mental health

statutes of every state. This result is not objec-

tionable for the sound reason pronounced by this

Court in Parham v. J.R., 442 U.S. 584, 607-609 (1979):

The mode and procedure of medical

diagnostic procedure is not the

business of judges.

However, the open-ended delegation that will

result if this Court accepts the concept of psychia-

tric emergency is Constitutionally objectionable.

The delegation of decision-making power proposed by

the State of Massachusetts is Constitutionally bar-

red because its unavoidable consequence is that a

grant of legislative power will occur each time the

APA publishes new diagnostic criteria. Only the ne-

bulous parameters of the APA's concept of mental de-

terioration will determine when the state's monopoly

on violence, to forcibly medicate an unconsenting

patient, will be set in motion.

51.

The concept of psychiatric emergency,

confined only to what constitutes substan-

tial mental deterioration within the elu-

sive boundaries of DSM-III, contains the

Constitutionally fatal flaw explained by

Mr. Justice Cardozo in Schecter Corp. v.

United States, 295 U.S. 495 at 551 (1935):

The ge 6 power of legis-

lation which has found expression

in this code is not canalized

within banks that keep it from

overflowing. It is unconfined

and vagrant . .. (Panama

Refining Co. v. Ryan, 293 U.S.

388, a (1934)).

Here . . . is an attempted del-

pe pa not confined to any

gle act nor to any class or

group of acts identified or

escribed by reference to a

standard. Here in effect is

a roving commission to inquire

into evils and upon discovery

correct them.

The concept of psychiatric emergency

does not offend the non-delegation doctrine

because it allows private psychiatry to de-

termine the standards which ultimately es-

tablish the legal sufficiency of the class-

ifications of the various mental disorders.

Nor does the concept of psychiatric emer-

52.

gency offend the non-delegation doctrine

because it allows private psychiatry to de-

termine when a psychiatric emergency exists

as a matter of clinical judgment. (See

f.n. 14, infra.) Rather, the delegation is

Constitutionally repugnant because it grants

private psychiatry the power to determine

the subject matter that defines the Consti-

tutional limitations of the exercise of

its own authority. This open-ended delega-

tion to private psychiatry fails, not be-

cause it does not prescribe particular pro-

cedural mechanisms, but because "[i])nstead

of prescribing rules of conduct, it author-

izes the making of codes to prescribe them."

Schecter Corp. v. United States, supra at

541.

Because the concept of psychiatric

emergency allows private psychiatry to de-

termine the Constitutional parameters of

its own conduct, should this Court accept

the notion of psychiatric emergency, it

will be equivalent to a grant of state

53.

power to act. Psychiatrists would become

the only private group in our society to

have been given the power by a single ad-

judication to dispose of an individual's

rights. The wielding of such power consti-

tutes an unprecedented menace to liberty

and democracy. (See, e.g., Wirtz, "Govern-

ment by Private Groups," 13 La.L.Rev. 440

(1953); Hanslowe, "Regulation by Visible

Public and Invisible Private Government,"

46 Tex.L.Rev. 88 (1961). This same threat

to our fundamental Constitutional framework

led the court in Johnson v. Milk Marketing

Board, 295 Mich. 644, 295 N.W. 346, 353

(1940) to warn: "No one should act as a

judge in his own cause." cf; Carter v.

Carter Coal, 298 U.S. 238 (1936).

Most importantly, the concept of psy-

chiatric emergency, by virtue of its content

and breadth, delegates a power to private

psychiatry to make what is traditionally a

judcial determination (i.e., legal incap-

ability to act, thereby enabling the state

54.

to act as parens patriae). Therefore, the

proposed delegation threatens historic no-

tions of fair trial and fair hearing. (See

Liebmann, "Delegation to Private Parties,"

50 Ind.L.J., pp. 657-59 (1975).

The District Court below in Rogers I.

recognized the danger of the decision-making

power delegated to psychiatrists should the

notion of psychiatric emergency be adopted

by this Court:

[D)Jefendants' proffered defin-

inition of an emergency justi-

fying forced medication --

the psychiatric wer wage 4 con-

cept -- is too broad, subjective

and unwieldy. The fact that a

set of circumstances may fall

within the broad parameters of

a psychiatric emergency does

not necessarily justify any

and all pereceet se steps taken

thereafter by a doctor, even

ep therapeutic and well

within the standards of reason-

able medical practice.

This court holds therefore that

a committed mental patient may

be forcibly medicated in an

emergency situation in which a

failure to do so would result

in a substantial likelihood of

yn ge harm to that pre:

gers I, supra at 136

55.

Moreover, because the concept of

psychiatric emergency is so broad and so

unwieldy, the decision to forcibly medicate,

once made, is not readily subject to judi-

cial review. There is no legal standard,

either implicit or explicit, contained

within the definition, against which to

measure the state's action. (Arizona v.

Calif., supra.) The subject matter permit-

ting forcible medication is purely medical,

circumscribed only by the indeterminate

boundaries of what constitutes a psychia-

tric emergency. The unavoidable result is

a violation of fundamental due process.

(See Argument I.)

Finally, should this Court find that

psychiatrists may force dangerous psychotro-

pic drugs on unconsenting involuntarily

committed patients, absent an adjudication

of legal incapability to act, the State

will be allowed, through private psychiatry,

to do what it cannot Constitutionally do

directly -- abrogate the Constitutional

56.

rights of individuals in the absence of a

justifiable state interest. (See Argument

1, )42/ That private psychiatry reasonably

believes that a psychiatric emergency calls

for the forced administration of dangerous

psychotropic drugs makes the intrusion no

less invasive to involuntarily committed

patients’ fundamental due process rights:

Experience should tell us to

be most on our guard to pro-

tect liberty when the govern-

ment's purposes are beneficent

Men born to freedom are natural-

ly alert to iy Sg invasion of

their liberty by evil-minded

rulers. The greatest dangers

lurk in insidious encroachment

by men of zeal, well-meaning,

but without understanding.

Olmstead v. United States, 277

U.S. at 479 (1928) (Brandeis, J.,

dissenting).

_15/ The decision to forcibly medicate would auto-

matically be justified solely because private

psychiatry, in its clinical judgment, reasonably

believed that the individual would further deter-

iorate without immediate administration of psycho-

tropic drugs. The result is unconsitutional,

because the delegation of this decision-making

power to private psychiatry automatically subro-

gates the individual's interest in being free

from unwarranted governmental intrusions, to the

interest of the state in providing care and

treatment.

37.

III. DUE PROCESS REQUIRES COURTS

TO EXERCISE "SUBSTITUTED

JUDGMENT" WHEN THE STATE ACTS

AS PARENS PATRIAE ON BEHALF

OF PATIENTS WHO HAVE BEEN JU-

DICIALLY DETERMINED INCOMPETENT

While it is true that "the sine qua

non for the state's use of its parens

patriae authority is a judicial determina-

tion of the patient's incompetence, Rogers

II, supra at 657, it is also true that the

exercise of the parens patriae authority is

not shielded from the requirements of due

process. Specht v. Patterson, 386 U.S.

605 (1967) and O'Connor v. Donaldson, supra.

In the context of forcible medication,

the state's responsibility to patients with

respect to due process does not end when the

patient has been declared incompetent. The

First Circuit below ruled that subsequent

to the determination of incompetence,

[S]tate actions based on

eet be takernwith the eim

sicaaae'the individual

himself would were he com-

etent to do so. cf.

erintendent of Belcher-

town v. Saikewicz [citations

omitted] (“substituted judg-

58.

ment" standard). Furthermore,

in order to ensure compliance

with this requirement, some

minimum procedural requirements

would seem to be necessary.

Id. at 661.

The Saikewicz case held that both

competent and incompetent mental patients

have a fundamental right to refuse treat-

ment. See Colyar, supra at 430. There-

fore, in order to preserve the right of

the incompetent patients, courts are re-

quired to exercise a "substituted judgment"

which is consistent "with the values and

desires of the affected individual."

Saikewicz, supra at 431.

Based on the reasoning of Saikewicz,

the couct in Guardianship of Roe, supra,

ruled thet trial courts must preserve the

right of incompetent mental patients to re-

fuse anti-psychotic drugs by exercising a

“substituted judgment" on behalf of the

patient. The court held that a court-ap-

pointed guardian could not constitutionally

consent to the medication until the trial

court had exercised a "substituted judgment"

59.

based on a consideration of the patient's

expressed preferences regarding treatment,

his religious beliefs, impact upon the

patient's family, the probability of ad-

verse side effects, the consequences if

treatment is refused, and the prognosis

with treatment. Guardianship of Roe,

supra at 56-61.

These cases establish that incompe-

tent patients are Constitutionally entitled

to a judicial determination of "substituted

judgment" before anyone can consent to anti-

psychotic medications on their behalf. See

also In re K.K.B., supra; In re Boyd, supra;

and Robertson, "Organ Donations by Incompe-

tents and the Substituted Judgment Doc-

trine," 76 Colum. L. Rev. 48, 57-68 (1976).

CONCLUSION

The fundamental rights to privacy and

bodily integrity protect all citizens from

state-inflicted bodily harm. This concept

lies at the very heart of the Constitution-

al framework of this country. This Court

60.

thoughout its history has acted to protect

all citizens from such harm and to safe-

guard the fundamental rights of those whose

ideas are considered unorthodox.

The forcible use of dangerous anti-

psychotic drugs on citizens who are already

confined by civil commitment is a shocking

violation of these fundamental rights which

this Court must once again protect.

This Court must uphold the right of

all citizens to resist the unjustified use

of these dangerous drugs and to affirm the

human dignity of those who are forced to

take them.

Respectfully submitted,

Sept 28, (98) om. Gucorn TL

LOUIS M. AUCOIN, III™

Patients’ Rights

Advocacy Services, Inc.

2525 24th Street

San Francisco, CA 94110

415-282-1777

*attorney for Amicus

Curaie

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