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Policy #: 83-50
December 16, 1983Effective Date:
December 16, 1983
Approval by Commissioner
December 16, 1983
James J. Callahan, Jr., Ph.D., Commissioner
Rogers – Implications for Administration of Antipsychotic Medication
On November, 29, 1983, the Massachusetts Supreme Judicial Court issued its decision in
the case of Rogers v. Commissioner of Mental Health. In this memorandum, I will attempt toset forth the major implications of the decision for the administration of antipsychoticmedications in DMH facilities and programs. Pending development of new DMH policies andregulations responsive to this decision, this memorandum may serve as a guideline for use in thefield.
The decision has major implications for all situations in which antipsychotic medications
are prescribed or administered. Having identified “ treatment with antipsychotic medications” as“extraordinary medical treatment”, the decision is not limited to situations where individuals arerefusing such treatment. New requirements are established for informing all patients of the risksand benefits of proposed or ongoing courses of medication treatment. Judicial review andapproval is required not only to overcome patient refusals but also, in many situations, toconfirm patient and/or guardian acceptances of treatment with medications. Chemical restraint,as defined by statute and in Department regulations, remains as a narrow exception to this rule.
In addition, emergency treatment with medications of certain patients over their objections maybe initiated to prevent the “ immediate, substantial, and irreversible deterioration of a seriousmental illness,” but may not be continued over a patient’s objection without judicialinvolvement.
As a very rough estimate, close to 1,000 cases may need to be brought to court from the
mental retardation facilities; at least an equally large caseload may develop at the inpatientmental health facilities; there may be numerous other cases involving individuals who arecurrently in community programs. Existing legal resources are not sufficient to manageimmediately so many new cases; clinical time required for competency evaluations, medicalcertificates, case preparation and courtroom appearances will be a new and very difficult burdenfor our existing clinical staff.
Definition of Antipsychotic Medications
Although there may be other implications that will need to be addressed at a later time,
the immediate import of the decision concerns the administration of antipsychotic medications:“Because the parties focus on antipsychotic drugs, our answers concerning medication arelimited to antipsychotic drugs.” (See Footnote 3). The decision refers to Footnote 1 of theopinion of the U.S. Circuit Court of Appeals in Rogers v. Okin, 634 F.2d 650 (1st Cir. 1980) forthe following definition of this term:
“We use the term “ antipsychotic drugs” to refer to medications such as Thorazine,Mellaril, Prolixis (sic) and Haldol that are used in treating psychoses, particularlyschizophrenia. The district court used this term interchangeably with theapparently broader term “ psychotropic drugs”, which may include anti-depressants and lithium, and which as far as the record shows do not have assubstantial a potential for serious side effects as do the antipsychotics. Both theparties and the district court have throughout this litigation focused exclusively onthe anti-psychotics… .Accordingly, we interpret the district court’s use of the term“psychotropic drugs” to mean antipsychotic drugs. The potentially harmful sideeffects of these drugs are set forth in detail in the record, and described in part inthe district court opinion. Foremost among them is tardive dyskinesia, a painful,disfiguring, and sometimes disabling neurological affliction which all parties inthis case concede might be caused by the use of antipsychotic drugs.
Continuity of Treatment
With respect to individuals who are refusing treatment with antipsychotic medication, the
decision continues the pattern that was established by Judge Tauro’s original decision inOctober, 1979. Treatment with antipsychotic medications for these patients must not beinitiated or must be interrupted (absent an emergency) pending the outcome of an appropriatejudicial process.
With respect to other patients, where there has been active or passive acceptance of
medication and where there is now a new requirement for judicial review, the question arises asto whether the treatment should not be initiated or should be interrupted pending the outcome ofthe required judicial review. Thus, the decision appears to require informed consent and yethundreds of the Department’s clients are unable to give this consent, implying a need in eachsuch case for judicial review. While every effort will be made to develop expedited procedureswith the judiciary, there may be extensive delays before judicial review is initiated or completed.
During this period, I strongly advise against any discontinuity in prescribed medical treatment.
Where antipsychotic medications have been prescribed, where there is no indication of a refusal,and where best efforts are being made by Department staff to initiate the process of judicialreview called for by Rogers, a failure to proceed with this treatment while awaiting judiciallysanctioned consent might well violate an individual’s legal rights to treatment.
Accordingly, while there must be assurance that all antipsychotic medication programs
have been prescribed and are maintained in accordance with accepted medical practices, and thatall patients within the limits of their capacity to understand are properly informed as to the risksand benefits of their medication program, the inevitable delays involved in obtaining judicialreview where there is passive or active acceptance of the medication will be an insufficientreason by itself to interrupt or not initiate the treatment. In these circumstances, the legalhazards of proceeding without informed consent are in my opinion outweighed by the greaterhazards of not proceeding with the prescribed psychiatric treatment.
The Court sets forth its expectations regarding the issue of informing patients as to
medication treatment in a footnote as follows:
“Patients must receive appropriate information on which to exercise the voluntarychoice to accept or reject antipsychotic drugs on an informed consent basis. SeeHarnish v. Children’s Hosp. Medical Center 387 Mass. 152 (1982); Saikewicz,supra at 730. ‘Appropriate information may include the nature of the patient’scondition, the nature and probability of risks involved, the benefits to bereasonably expected, the inability of the physician to predict results, if that is thesituation, the irreversibility of the procedure, if that be the case, the likely result ofno treatment, and the available alternatives, including their risks and benefits.’Harnish, supra at 156. Further, competent patients may, at any time, revoke theirprior consent and refuse to continue with the treatment.” (See Footnote 11)
This advice should be closely followed in all cases involving the administration of antipsychoticmedication to Department clients. If an individual is clearly incapable of understanding theindicated information, this should be noted in the record and, in these circumstances, theinformation does not need to be provided to the individual.
Refusals of Antipsychotic Medication
A. Refusals in General. Absent the emergency circumstances described in paragraphs Band C below, a patient’s refusal of antipsychotic medication may be overridden only bythe decision of a judge. In fact, two sequential determinations are required of the judgefor such a decision: first, that the patient is legally incompetent to make the treatmentdecision (a competency determination); second, that the patient, if competent, wouldconsent to the medication (a substituted judgment determination). If a judge makes sucha decision, he or she must further “ ‘authorize a treatment program which utilizes variousspecifically identified medications administered over a prolonged period of time. Insuch a case, the order should provide for periodic review to determine if the ward’scondition and circumstances have substantially changed. Guardianship of Roe’ “ SeeRogers p.22.
The Legal Office (see Paragraph VII below) will (within the limits of available
resources) initiate petitions or complaints in cases where there is sufficient factual
foundation for a treating physician’s belief that the patient’s refusal should be overriddenand that the standards described above for a judicial determination of incompetency andsubstituted judgment can be met. This procedure appears to be parallel to but morecomplex and time consuming than the process followed by the Department sinceOctober, 1979, for all non-emergency refusals of antipsychotic medication.
B. Chemical Restraint. If a patient refuses antipsychotic medication, the medicationmay be administered forcibly as restraint “ only in emergency situations where there is theoccurrence or serious threat of extreme violence, personal injury, or attempted suicide.”104 CMR 3.12(2). The Court underscores the restrictiveness of this language andconcludes that chemical restraint may be used “ only if a patient poses an imminent threatof harm to himself or others, and only if there is no less intrusive alternative toantipsychotic drugs.” See Rogers pp. 27-28. In a footnote to this discussion ofchemical restraint, the Court makes the following additional observation:
“The defendants suggest that certain patients, as a symptom of their illness, willperiodically threaten violence. Predictable crises are not within the definition ofemergency… .Therefore, in those cases, the consent of the patient for medicationwith antipsychotic drugs must be obtained in advance, while the patient iscompetent and calm… .” (See Footnote 26)
The Court’s advice should be closely followed in all such cases. I would add, however,that if a crisis does in fact develop where there is an imminent threat of serious harm,restraint (including chemical restraint, mechanical restraint or seclusion) may then beused to prevent the threatened harm. Additionally, if it appears that there has been arevocation of a prior consent, the revocation must be honored and the medication mayproceed over objection only in an emergency or with judicial approval.
C. Emergency Treatment. Antipsychotic medication may “ in rare circumstances” beadministered for treatment purposes over the objection of a patient if (a) the treatingphysician determines that the medication is necessary to prevent the “ immediate,substantial, and irreversible deterioration of a serious mental illness”, and (b) the patienthas either been adjudicated incompetent or is “ one whom doctors, in the exercise of theirprofessional judgment, believe to be incompetent.” This “ interim treatment” may becontinued over the patient’s objection only if appropriate judicial procedures (see below)are initiated.
Acceptance of Antipsychotic Medication
A. Acceptance By Wards Or By Their Guardians. If an individual has been foundlegally incompetent and a guardian has been appointed, neither the acceptance or consentby the individual or by the guardian will be sufficient for indefinite continuation of acourse of treatment with antipsychotic medications. The Court makes this point clear in
Footnote 14: “… because incompetent persons cannot meaningfully consent to medicaltreatment, a substituted judgment by a judge should be undertaken for the incompetentpatient even if the patient accepts the medical treatment.”
Accordingly, except where there has been a prior substituted judgment
adjudication by a court, all such cases must be brought to the attention of the LegalOffice (see Paragraph VII below) as soon as possible. Appropriate petitions or motionswill be prepared as soon as possible in these cases to initiate the process of judicialreview. In the interim, the advice set forth in parts III and IV of this memorandumshould be noted.
B. Acceptance By An Individual Who Has Been Determined To Be Incompetent ToMake Treatment Decisions At A Periodic Review. Under G.L. c.123, s.4, periodicreviews are required for all individuals in departmental facilities. The periodic reviewmust include “ an evaluation of the legal incompetency of the person and the necessity oradvisability of having a guardian or conservator appointed or removed.” Thisrequirement is further amplified by DMH regulations at 104 CMR 3.11(5) for inpatientmental health facilities and 104 CMR 21.47(7) for mental retardation facilities. It is myunderstanding that there are many individuals in Department facilities who are not underguardianship but who have been found at a periodic review to be unable to makecompetent medical treatment decisions. Many of these individuals are currentlyreceiving and accepting treatment with antipsychotic medications.
An individual in this situation remains legally competent: “ We conclude that a
mental patient has the right to make treatment decisions and does not lose that right untilthe patient is adjudicated incompetent by a judge through incompetence proceedings.
See G.L. c.201, s.6. No other procedure is available for determining that a patient lacksthe capacity to make treatment decisions.” See Rogers, pp. 9,10. The periodic reviewdetermination, however, places in substantial doubt the actual ‘capacity of the individualto “ receive appropriate information on which to exercise the voluntary choice to accept orreject antipsychotic drugs on an informed consent basis” (my emphasis) (SeeFootnote 11, also quoted in paragraph III of this memorandum).
Under these circumstances, I believe the Department must now initiate a process
of clinical and judicial review leading to a judicial determination of competency andsubstituted judgment. These cases should, therefore, be brought to the attention of theLegal Office. (See Paragraph VII below). Pending the initiation and conclusion of thisprocess of judicial review, the course of treatment with antipsychotic medication maycontinue consistent with the discussion above in Paragraph III and IV of thismemorandum.
Finally, with respect to periodic review determinations, it should be noted that the
statute requires the legal competency evaluation to occur as part of a periodic review “ atleast upon admission, once during the first three months after admission, once during thesecond three months after admission and annually thereafter” G.L. c.123, s.4. It isessential that these evaluations occur on a timely basis (particularly when a clinician has
made an initial assessment that an individual is not capable of making informed medicalcare decisions), in order to provide a proper foundation for determining whether or notjudicial review of antipsychotic treatment decisions will be necessary.
C. Acceptance By All Other Individuals.
Absent an adjudication of legal incompetence or a periodic review determination
of incompetence, an individual’s acceptance of antipsychotic medications will provide asufficient basis for continued treatment with such medications. The requirementssummarized in Paragraph IV above for informing such individuals must, of course, beobserved.
The Legal Office will be discussing the legal processes required by this decision with the
Attorney General’s Office, representatives of the Judiciary, legal advocacy groups and others.
The purpose of these discussions will be to establish a consensual framework within which theissues identified in this memorandum may be resolved in a thoughtful and ordered way. In theinterim, cases which are brought to the Legal Office consistent with the advice contained in thismemorandum should be initially presented on the attached form, Attachment A. The casesshould be approved by the facility head or designee before being brought to the Legal Office.
Attachment B lists the lawyers who have been assigned to each of the Department’s facilities.
Cases should be presented to the appropriate lawyer. Additional guidelines relative to lessintrusive procedures, consent, competency, substituted judgment, guardianship and judicialprocedures will be made available through these lawyers or through the facility heads.
The decision is based on interpretations of common law and state statutes: “ Because the
answers to the certified questions are controlled by Massachusetts statutory and common law, wedo not discuss the issues under the State Constitution.” (See Footnote 7). While this state lawfoundation most probably will negate any further appeal to the federal courts, legislativeproposals may be considered to modify the substantive or procedural requirements of thedecision. The Legal Office will be reviewing the need for legislative change as we proceed witha good faith effort to implement the decision. Any proposals for such legislative change fromthe field should be forwarded directly to my attention.
ANTIPSYCHOTIC MEDICATION TREATMENT FOR MENTALLY ILL
Accepts Treatment Refuses Treatment Emergency Situation
* References in this chart to numbered paragraphs (e.g., “ See VA”, or “ See VB” are intended to refer to the discussion contained in the attached Ames-Callahan legal memorandum dated 12/16/93.
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