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5455.01 |
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The Right to Refuse Psychotropic Medication For Forensic Mental Health Clients
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Protection & Advocacy, Inc.
Central
Office
Southern
Bay Area
Office
Toll Free
(800) 776-5746 |
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Table of Contents
II.
Framework
for Analyzing the Right to Refuse Psychotropic Medication
IV.
Mentally
Disordered Offenders (MDOs)
V.
Sexually
Violent Predators (SVPs)
VII.
Not
Guilty by Reason of Insanity (NGI)
VIII.
Incompetent
to Stand Trial (IST)
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LPS Patient |
Emergency Situation |
Welfare and Institutions Code Section 5332(e), defining “emergency” as a situation in which medicating immediately necessary for the preservation of life or the prevention of serious bodily harm to the patient or others, and it is impracticable to first gain consent. [Welfare and Institutions Code Section 5008(m)] |
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Lack of Capacity to Consent |
Under Welfare and Institutions Code Section 5332(b) (1) the staff must consider and determine that treatment alternatives are unlikely to meet the needs of the patient; and (2) a determination of incapacity to refuse treatment must be made in a hearing held for that purpose. |
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Danger to Self or Others |
A finding of dangerousness under Penal Code Section 5300 will justify involuntary medication of an LPS patient. A finding of generalized “demonstrated danger” and recent acts of violence is required. |
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Other Methods |
The Court can grant a conservator the power to consent to treatment. The conservatee can contest this power granted to the conservator by filing a petition for a hearing. Welfare and Institutions Code Section 5358.3. Right to refuse psychotropic medication can be taken away by the LPS court in letters of conservatorship |
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MDO |
Emergency Situation |
Penal Code Section 2972(g) adopting Welfare and Institutions Code Section 5332(e) |
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Lack of Capacity to Consent |
Penal Code Section 2972(g) adopting Welfare and Institutions Code Section 5332(b) |
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Danger to Self or Others |
In re Qawi, adopting Penal Code Section 5300. |
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Other Methods |
The rights can be further limited by State
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SVP |
Emergency Situation |
In re Calhoun, granting the same rights as MDOs. |
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Lack of Capacity to Consent |
In re Calhoun, granting the same rights as MDOs. |
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Danger to Self or Others |
In re Calhoun, granting the same rights as MDOs. |
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Other Methods |
In re Calhoun, granting the same rights as MDOs. |
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Prisoner |
Emergency Situation |
California
Code of Regulation Title 15, Section 1217;
Keyhea injunction Section
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Lack of Capacity to Consent |
Penal Code Section 2600 requiring compliance with the Keyhea injunction process. A hearing that finds that the prisoner is gravely disabled and incompetent to refuse medication will justify involuntary medication. |
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Danger to Self or Others |
Penal Code Section 2600 requiring compliance with the Keyhea injunction process. A hearing finding that the prisoner poses a danger to self or others as a result of a mental disorder will justify involuntary medication. |
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Other Methods |
None |
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State Prison
Transferee |
Emergency Situation |
In re Brown, granting similar rights as prisoners. |
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Lack of Capacity to Consent |
In re Brown, granting similar rights as prisoners. |
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Danger to Self or Others |
In re Brown, granting similar rights as prisoners. |
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Other Methods |
None |
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NGI |
Emergency Situation |
Possibly have the same rights of prisoners under In re Qawi. |
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Lack of Capacity to Consent |
Possibly have the same rights of prisoners under In re Qawi. |
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Danger to Self or Others |
Possibly have the same rights of prisoners under In re Qawi. |
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Other Methods |
None |
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Emergency Situation |
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Lack of Capacity to Consent |
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Danger to Self or Others |
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Other Methods |
Involuntary medication may be used to restore competency if a court finds that there is a substantial likelihood that medication will render the defendant competent, without substantial side effects that interfere with his defense; no alternative exists that would have the same results and medication is in the defendant’s best interests. |
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I. IntroductionThis publication is intended for use by advocates
and clients. This publication begins with a general framework for analyzing
right to refuse medication problems. It then proceeds to outline the legal
rights of individuals on Lanterman-Petris-Short Act (LPS) short term holds. Even
though these patients are civilly committed and are not “forensic,” both case
law and
Which Medications are Considered Psychotropic? Penal Code Section 3500(c) defines a psychotropic
drug as “any drug that has the capability of changing or controlling mental
functioning or behavior through direct pharmacological action. Such drugs include, but are not limited to,
antipsychotic [including Thorazine, Mellaril, Prolixin, and Haldol],
antianxiety, sedative, antidepressant, and stimulant drugs. Psychotropic drugs also include
mind-altering and behavior-altering drugs which, in specified dosages, are used
to alleviate certain physical disorders, and drugs which are ordinarily used
to alleviate certain physical disorders but may, in specified dosages, have
mind-altering or behavior-altering effects.” [ Note: Withdrawal of Consent This publication addressed the right to
refuse antipsychotic medication. In
some cases, informed consent will be given by the client, at which point the
state need only ensure that the consent was “informed.[i]”
Individuals who give informed consent may withdraw their consent at any time
by stating their intention to any member of the treatment staff. [Title 9,
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II. Framework for Analyzing the Right to Refuse Psychotropic MedicationAn individual “has a ‘significant’ constitutionally protected ‘liberty interest’ in ‘avoiding the unwanted administration of antipsychotic drugs.’”[ii] Therefore, forensic mental health clients are presumed to have the right to refuse psychotropic medications. Accordingly, absent informed consent, the state may only force medication in two situations: 1. An “emergency situation” requiring forced medication. [Welfare and Institutions Code Section 5332(e)] 2. Other “specific criteria” are met. Specific Criteria The specific criterion that must be satisfied
depends on the nature of the client’s commitment. For purposes of this
publication, forensic mental health commitments include: a Mentally
Disordered Offender (MDO), a Sexually Violent Predator (SVP), a prisoner, a
state prison transferee, Not Guilty by Reason of Insanity (NGI), or
Incompetent to Stand Trial ( Thus, in analyzing the right to refuse treatment, the first question to ask is whether an emergency exists justifying the state’s forced medication. If not, the next question is whether the state has met the “specific criteria” required for involuntary medication. In general, if neither of these burdens is met, the individual will most likely retain the right to refuse psychotropic medication. Since statutes and courts have granted the rights of LPS patients to other categories of committed individuals, it is appropriate to start with a brief summary of the LPS patient’s right to refuse involuntary medication.
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III. LPS Patients
Short-Term LPS Patients Short-term LPS patients (i.e., those committed under Welfare and Institutions Code Section 5150, 5250, 5260 or 5270.15) may only be involuntarily medicated in 3 situations: a. An emergency situation. Emergency Situation Defined “Emergency” is defined as a situation in which medicating against the person's will is immediately necessary for the preservation of life or the prevention of serious bodily harm to the patient or others, and it is impracticable to first gain consent. It is not necessary for harm to take place or become unavoidable prior to treatment. [Welfare and Institutions Code Section 5008(m)] Additionally, emergency medications must be provided
in a manner that is least restrictive to personal liberty; medications should
be limited to those that are needed to treat the emergency situation. [Welfare and Institutions Code Section
5332(e); Title 9,
b. . . . upon a determination of a person's incapacity to refuse the treatment, in a hearing held for that purpose. [Welfare and Institutions Code Section 5332(b)[iii]]. (See Appendix A for Riese hearing procedures.) Determining Capacity Incompetence may not be presumed because the individual has been evaluated or treated for a mental disorder [Welfare and Institutions Code Section 5331] or because of a diagnosis of being mentally ill, disordered, abnormal, or mentally defective. [Riese, 209 Cal.App.3d 1303, 1315] In determining capacity to consent for short term LPS patients[iv], a court is to consider 3 factors: whether the person (1) is aware of her situation/condition; (2) is able to understand the benefits and the risks of, as well as the alternatives to, the proposed intervention; and, (3) is able to understand and to knowingly and intelligently evaluate the information required to be given patients whose informed consent is sought. [Riese, 209 Cal.App.3d 1303 (1987)] c. The individual qualifies as “dangerous” within the meaning of Welfare and Institutions Code Section 5300.[v] Determining “Dangerousness” under Section 5300 To effect a Section 5300 commitment, a court must find, after the initial 72 hours hold and subsequent 14 day hold, both: A. Generalized “demonstrated danger” to others which may be based on assessment of the person's present mental condition, which is based upon a consideration of past behavior of the person within six years prior to the time the person attempted, inflicted, or threatened physical harm upon another, and other relevant evidence. [Welfare and Institutions Code Section 5300.5] In addition, one of the following findings establishing recent acts or threats of violence must be made: “(a) The person has attempted, inflicted, or made a serious threat of substantial physical harm upon the person of another after having been taken into custody, and while in custody, for evaluation and treatment…(b) The person had attempted, or inflicted physical harm upon the person of another, that act having resulted in his or her being taken into custody…(c) The person had made a serious threat of substantial physical harm upon the person of another within seven days of being taken into custody, that threat having at least in part resulted in his or her being taken into custody.” [Welfare and Institutions Code Section 5300] LPS Conservatees
LPS conservatees have the right to refuse medication absent an
emergency unless the conservatee is determined to lack capacity to consent in
the judicial hearing creating the conservatorship, or in a subsequent
hearing. [Riese v. St. Mary’s
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IV. Mentally Disordered Offenders (MDOs)Who can be detained as an MDO? Paroled offenders may be civilly committed as a condition of their parole if a specified team of mental health professionals finds that the offender: (1) has a severe mental disorder that is not in remission or cannot be kept in remission without treatment; (2) finds that by reason of his or her severe mental disorder, the prisoner represents a substantial danger of physical harm to others; and (3) meets the other criteria listed in Penal Code Section 2962. “Substantial danger of physical harm” can be
demonstrated by a finding of recent dangerousness, but is not required. It can also be demonstrated when a person
has not voluntarily followed the treatment plan. “Substantial danger of
physical harm does not require proof of a recent overt act.” [Penal Code
Section 2962 et seq.] Right to Refuse Under In Re Qawi, and California Penal Code Section 2972(g)[vi], an individual committed to a state hospital as an MDO is granted the same rights to refuse treatment as an LPS patient. Therefore, absent an emergency situation, MDOs have the right to refuse psychotropic medication unless a court finds either at the time the MDO is committed or recommitted, or in a separate proceeding, that either: 1. The MDO is incompetent or incapable of making decisions about his medical treatment; or, 2. The MDO is
dangerous within the
meaning of Penal Code Section 5300. (See section
An MDO does not lose the right to refuse antipsychotic medication merely by being adjudicated an MDO or solely because the MDO was dangerous in the past. [In Re Qawi, 32 Cal.4th 1, 25 (2004)] The rights of MDOs to refuse medication can be
further limited by State Department of Mental Health regulations necessary to
provide security for inpatient facilities. [In Re Qawi, 32 Cal.4th 1, 10
(2004)] See
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V. Sexually Violent Predators (SVPs)Who is considered an SVP? A sexually violent predator is “a person who has been convicted of a sexually violent offense against two or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior.” [Welfare and Institutions Code Section 6600] In In Re Calhoun, 121 Cal.App.4th 1315 (2004), the California Court of Appeals granted SVPs the same right to refuse medication as MDOs. Accordingly, absent an emergency, an SVP can be medicated involuntarily only if a court, at the time the SVP is committed or recommitted, or in a separate proceeding, finds that either: (1) The SVP lacks the capacity to make decisions about his medical treatment; or, (2) The SVP is dangerous within the meaning of California Penal Code Section 5300. (See section
The rights of SVPs to refuse medication can be
further limited by State Department of Mental Health Regulations necessary to
provide security for inpatient facilities. [In Re Calhoun, 121 Cal.App.4th
1315 (2004)]
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VI. Prisoners
A. Minimal
The U.S. Supreme Court has stated that in order to involuntarily medicate a prisoner who is a danger to self or others, the state has the burden of demonstrating that: a. The inmate suffers from a mental disorder; b. The treatment is medically appropriate (i.e., in the inmate’s best interests); c. The treatment sought was least intrusive, i.e., there are no alternatives; and, d. The state has a significant state interest
i.e., medication is essential for the
safety of the prisoner or others, or, the
inmate is gravely disabled. [Riggins v.
According to the U.S. Supreme Court, these
determinations can be made through an internal administrative procedure[vii];
a judicial hearing is not required. Note:
Additionally, the inmate has the right to attend the
hearing, to present evidence, and to be represented by a lay advisor who
understands the psychiatric issues involved, but not by a lawyer. The inmate
also has the right to appeal the panel’s decision to the superintendent. [Washington
v. Harper, 494
Note: Pretrial Detainees In Riggins v. Nevada, 504 U.S. 127 (1992), the court stated that pretrial detainees were extended at least as much protection as prisoners from forced medication.
B. Additional
Under Penal Code Section 2600, a state may only involuntarily medicate a prisoner: 1. In an
emergency
situation [Keyhea injunction Section
2. After a
judicial
determination in compliance with the injunction process specified in Keyhea
v. Rushen, 178
Judicial Determination: Keyhea Injunction (see Appendix B for more detailed procedure and appeal) 1. Process for Involuntary Medication for First 24 Days The state may administer involuntary medication for up to 72 hours. This is presumably based on the fact that a 72 hour detention requires a finding that the patient is a danger to self or others or gravely disabled; however, further medication (for up to an additional 21 days) requires that the state certify in a judicial hearing that the prisoner is: 1. Gravely disabled and incompetent to refuse medication; or, 2. Poses a danger to self or others as a result of a mental disorder. [Keyhea injunction, Section II(A)] The hearing may, at the direction of the director, be conducted at the facility where the inmate is located. If, at the end of the hearing, the hearing officer concludes that the prisoner is neither gravely disabled and incompetent nor a danger to others or to self, involuntary medication must be discontinued. [Keyhea injunction Section II(I), (M)] An Administrative Law Judge overseeing a prisoner’s involuntary medication proceeding has the authority to order an independent forensic psychiatrist to assist inmates in the hearing.[viii] However, courts are not required to consider less restrictive alternatives prior to ordering involuntary medication with psychotropic drugs.[ix] 2. Process for Involuntary Medication Beyond 24 Days Involuntary medication
beyond 24 days
(including the initial 72 hours) requires a
petition and court order
from the superior court. The order authorizing involuntary medication must
find, by clear and convincing evidence, as above, that the prisoner, as a
result of mental disorder, is gravely disabled and incompetent to refuse
medication or is a danger to self or others. [Keyhea injunction Section
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VII. Not Guilty by Reason of Insanity (NGI)NGIs are individuals committed to state hospitals under Penal Code Section 1026.[xi] The law governing an NGI’s right to refuse is not clear. In In re Locks, 79 Cal.App.4th 890 (2000), the California Court of Appeals concluded that individuals who are found to be not guilty by reason of insanity do not have a right to refuse medication. The court noted that under Keyhea, a judicial determination of incapacity and grave disability or that the prisoner poses a danger to self or others is required in order to involuntarily medicate; however, the Locks court reasoned that the judicial determination that the prisoner was not yet restored to sanity and not eligible for release under Penal Code Section 1026.2 creates the presumption that the patient is still a danger to self or others. Therefore, the NGI has no right to refuse medication.[xii] In
In re Qawi,
the California Supreme Court criticized the reasoning of the Locks court.
First, the court stated that NGIs should have their own specific criteria for
suspending the right to refuse and that the application of Penal Code Section
2972(g) was not obvious.[xiii]
Second, the court stated that “dangerousness to others” cannot be presumed
because of a denial of release. Rather, “particular findings of recent acts
of dangerousness pursuant to Welfare and Institutions Code Section 5300” are
required.[xiv]
(See section
Further, the
In sum, the state of the law seems to suggest that NGIs are covered by the same rules as prisoners (see section VI, above) until the courts or legislature fashion a new set of rules. Furthermore, in light of In re Qawi, the trend in California seems to be moving towards requiring some type of judicial determination, and away from the creation of a presumption that would grant the state automatic authority to medicate involuntarily (absent an emergency situation).
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VIII.
Incompetent to Stand Trial (
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