Rennie v. Klein

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SEITZ, Chief Judge, concurring.

I agree with Judge Garth that persons who have been involuntarily committed to a mental institution have a qualified constitutional right to refuse antipsychotic medication. I also agree that the State of New Jersey has a countervailing interest in administering these drugs to an unwilling patient in certain circumstances, and that the procedures set forth in Administrative Bulletin 78-3 accommodate these various interests in a manner consistent with the Due Process Clause. I am writing, however, because of my different understanding of the Supreme Court’s instruction that we reconsider this case in view of the Court’s recent holding in Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982).

In Youngberg, the Court held that men- . tally retarded people who have been involuntarily committed have due process rights to be safe and free from bodily restraint, and that these rights are protected by a requirement that any infringement must be based on the “professional judgment” of the institution’s staff. In my view, Judge *273Garth’s opinion does not sufficiently relate his analysis to this standard.

There can be no doubt that persons who have been involuntarily committed to institutions possess certain due process rights. Among these are “liberty interests in safety and freedom from bodily restraint.” Youngberg, 457 U.S. at 319, 102 S.Ct. at 2460.1 A related liberty interest, central to the present inquiry, is the right to refuse medical treatment, including antipsychotic drugs. These rights, however, are not absolute and must yield in certain circumstances to other, more important interests. The fact of legal, involuntary institutionalization is one such circumstance.2

Involuntary confinement represents a transfer from the patient to the State of the authority to make certain decisions affecting the patient’s welfare. This transfer of authority is justified as an exercise of both the State’s police power to protect society generally, and the State’s parens patriae power to protect a citizen’s interests when the citizen is incapable of protecting those interests himself. Although differences between these two powers may be clear in some instances, they are not readily distinguishable in the present circumstances. Even when the sole justification offered for a patient’s confinement is that he is dangerous to himself or others, as in New Jersey, and not that he is incompetent, there is the inescapable fact that such confinement is a benefit to the patient as well as to society — a benefit which the patient is incapable of securing for himself. But see Developments, Civil Commitment of the Mentally Ill, 87 Harv.L.Rev. 1190 (1974).

The justification for the administration of the antipsychotic drugs is not unrelated to this question of the State’s confinement of the patient. Where the State has removed the patient from society because he is dangerous, it is empowered to make additional decisions that affect his welfare. As explained above, the power to make these decisions is supported by the dual interests in society’s and the patient’s welfare. The State is not restricted to helping the patient only if he wishes to be helped. That limitation was overcome when the patient was confined. The State may therefore make decisions about different treatments that offer some hope of improving the patient’s condition and returning him to his community.

The issue before this Court is the constitutional standard which should apply to ensure a proper balance between the State’s interests and the mental patient’s due process rights in situations where the State wishes to administer antipsychotic drugs against the patient’s wishes. In Young-berg, the Supreme Court concluded that the State may restrict a retarded person’s interests in safety and freedom from bodily restraint, but only where such restrictions are the product of a “professional judgment.” 457 U.S. at 321, 102 S.Ct. at 2461. It is unclear whether the right to refuse antipsy-chotic drugs deserves greater protection than the rights at issue in Youngberg. Bodily restraints obviously impinge very directly on the patient’s liberty, but they are also unlikely to have long-term effects. Health risks, on the other hand, may have irreversible consequences that are both immediate and long-term. Similarly, antipsy-chotic drugs may have dangerous and irreversible side effects in both the short and the long term. What is clear is that all of these practices present substantial threats to the due process rights of the patient. At the same time, they require that professional staff members make complex decisions based on many factors which they are in the best position to evaluate.

It is my view that the standard adopted by the Supreme Court in Youngberg provides, at the very least, a starting point for *274accommodating the various interests involved in any decision to administer anti-psychotic drugs to an unwilling patient. I would therefore hold, more explicitly than Judge Garth has done, that the Due Process Clause at a minimum requires the authorities to administer antipsychotic drugs to an unwilling patient only where the decision is the product of the authorities’ professional judgment. The decision of a professional staff person will be presumed valid unless it is shown to be a “substantial departure from accepted professional judgment, practice or standards.” Youngberg, 457 U.S. at 323, 102 S.Ct. at 2462.

The decision whether to administer drugs is by its nature fact-specific. As a general matter, however, the physician must consider both the welfare of the patient and the interests of society as a whole. This requires a consideration of whether there may be any harmful side effects to the patient and whether there are possible alternatives to the use of the drugs. In addition, the physician’s decision to use the drugs must be based on a contemporary judgment that the drugs either (1) are an appropriate part of the effort to treat the existing disorder that warrants the patient’s continued confinement, or (2) must be administered in response to, or in anticipation of, the patient’s violent outbreaks. Use of the drugs may not be justified purely on economic or administrative grounds, as part of an attempt to “warehouse” the patient.

The regulations in New Jersey Administrative Bulletin 78-3 satisfy these requirements imposed by the professional judgment standard. The procedures provide that the physician shall meet with the patient to explain “his assessment of the patient’s condition; his reasons for prescribing the medication; the benefits and risks of taking the medications; and the advantages and disadvantages of alternative courses of action.” Ad.Bull. 78-3 § 11(B). In addition, the regulations require that the physician base his decision to administer the drugs on one of three alternative findings: (1) that the patient will harm himself or others without the drugs; (2) that the patient cannot improve without the drugs; or (3) that the patient can improve without the drugs, but only at a significantly slower rate. § 11(2).

In addition, the regulations establish a system of review by other professional staff members at the institution. In order to administer antipsychotic drugs over the patient’s protest, the physician is required to meet with the “treatment team” to discuss the matter. He must also encourage the patient to discuss the proposed medication with relatives or friends. Finally, the physician must submit the entire case to the medical director, whose concurrence is required before commencement of the medication. § 11(B), (C). Afterwards, the plan of medication must be reviewed weekly. § 11(E)(2). All of these steps must be documented. § 11(E)(3).

I have no doubt that the New Jersey scheme for administering antipsychotic drugs to unwilling patients satisfies the due process requirements adopted by the Supreme Court in Youngberg. The scheme not only requires that the decision be the product of a professional judgment, but it specifies in some detail the particular type of professional judgment that must be exercised. In addition, the scheme imposes certain procedural requirements to ensure the appropriateness of the decision. Because the availability of the procedural protections is not an issue in this case, however, it is not necessary to decide whether such procedural protections are required under the Due Process Clause, or whether they are committed to the discretion of the state.

Although I entertain a different understanding of the Supreme Court’s direction that this court reconsider its judgment in view of Youngberg, I concur with Judge Garth’s conclusion that the New Jersey regulations satisfy the requirements of due process.

WEIS, Circuit Judge, concurring, with whom A. LEON HIGGINBOTHAM, Jr. and SLOVITER, Circuit Judges, join.

It is important to note at the outset that the court reaffirms its holding that *275involuntarily committed mentally ill patients have a constitutional right to refuse administration of antipsychotic drugs. On that point, all members of the court agree. I differ with Judge Garth’s opinion only on the least intrusive means issue and, on that point, adhere to my former opinion. See Rennie v. Klein, 653 F.2d 836, 838-854 (3d Cir.1981) (in banc).

It is regrettable that the remand has caused this court to retreat from the modest advance it made in applying the least intrusive means test to the long-term involuntary administration of these drugs. This rejection is particularly disheartening because it is based on Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982), where the Supreme Court found that the least intrusive standard was not relevant to the facts presented there, and the plaintiff conceded that it was not an issue. Id. at 313-14 n. 14, 102 S.Ct. at 2457 n. 14. The Supreme Court’s opinion did not purport to govern the least intrusive means issue in the case at hand. I would take the Court at its word.

Even if Romeo rejected sub silentio the least intrusive test for the circumstances of that case, the decision would not, in my view, govern the standard for long-term forceable administration of antipsychotic drugs. In Romeo, the alleged constitutional violations were: first, the failure to provide for a resident’s safety in terms of protecting him from his own violent acts and those of other inmates; second, the imposition of unreasonable bodily restraints — in that case, physical ones, such as shackles; and finally, the failure to provide minimal “ha-bilitation” or training related to safety and freedom from restraints.

In measuring the state’s obligations in the context of the safety and restraint issues, the Supreme Court approved Chief Judge Seitz’s standard that “the courts [are to] make certain that professional judgment in fact was exercised. It is not appropriate for the courts to specify which of several professionally acceptable choices should have been made.” Id. at 321, 102 S.Ct. at 2461.

The majority reads into the Supreme Court’s remand an implicit disapproval of the least intrusive means test in the circumstances present here.1 I do not detect any such message. Moreover, because of the substantial factual differences, I do not agree with the application of Romeo to this case.

Most significantly, the restraints at issue in Romeo were not measures bearing potentially permanent effects that would be physically or mentally crippling. If physical means such as straight) ackets or hand “muffs” are used, the restraint can be removed without any permanent after-effects.2 An erroneous decision on these restraints, therefore, can be corrected and, although past discomfort and frustration might not be undone, the effects do not continue into the future.

By contrast, the long-term administration of antipsychotic drugs may result in permanent physical and mental impairment. As our earlier opinion noted, all antipsychotic *276drugs affect the central nervous system and induce a variety of side effects. 653 F.2d at 843. Minor physical effects include blurred vision, constipation or diarrhea, palpitations, skin rashes, low blood pressure, faintness, and fatigue. Some patients experience akinesia — a state of diminished spontaneity, physical weakness, and muscle fatigue; others suffer akathesia, which is marked by a subjective state and an inability to be still.

Although these conditions usually diminish, antipsychotic drugs can also induce a permanent disorder known as tardive dys-kinesia. It is “characterized by rhythmical, repetitive, involuntary movements of the tongue, face, mouth, or jaw, sometimes accompanied by other bizarre muscular activity.” Rennie v. Klein, 462 F.Supp. 1131, 1138 (D.N.J.1978). In addition, the effects on the patient’s condition may not be limited to those produced directly by the drugs, For example, one patient’s diet is now restricted to ground food because the involuntary jaw movements resulting from tardive dyskinesia were so severe that she could not be fitted with dentures.3

Unlike the temporary and predictable effects of bodily restraints, the permanent side effects of antipsychotic drugs induce conditions that cannot be corrected simply by cessation of the regimen. The permanency of these effects is analogous to that resulting from such radical surgical procedures as a pre-frontal lobotomy. The consequences of error are far more serious in the drug cases than those of Romeo’s physical restraints, and therefore, a standard commensurate with the potential harm to the patient is required.

The maj0rity holds that the drugs may be constitutionally administered if the decision js made as a result of a “professional judgment” by the institution staff. Although one 0f the elements to be weighed is the side effects the patient will suffer, the majority apparently regards this factor as having no greater weight that any other consideration. I fear that the latitude the majority allows in “professional judgment” jeopardizes adequate protection of a patient’s constitutional rights,

ln my view, it is not enough to rely on a “professional judgment” unless it includes an evaluation aimed at the least intrusive means — a cost-benefit analysis viewed from the patient’s perspective. A “professional judgment” based primarily on administrative convenience or the purely economic interest of the state does not pass muster.4 If less intrusive means to accomplish the state’s legitimate objectives are available and feasible, then administrative and financial concerns are simply not significant enough to justify a patient’s exposure to the serious risks accompanying use of these drugs. For this reason, the standard approved in the circumstances of Romeo has serious deficiencies when transferred to Rennie’s situation.5

Although the majority and I diverge on the applicability of the least intrusive means doctrine, it should be apparent that in application our difference is primarily one of emphasis. To me, the least intrusive doctrine directs that professionals give *277greater consideration to the potential danger to the patient than to the state’s administrative convenience or economic benefits. Since the majority incorporates harm to the patient as one of the elements of the “professional judgment,” it may be that in most cases the outcome would be the same under both tests. Although the difference in standards may be only one of degree, it is nevertheless an important one.

In adhering to the least intrusive test, I have not overlooked the Supreme Court’s emphasis in Romeo that courts show deference to the judgment exercised by a qualified professional, so as to minimize judicial interference with the functioning of the institution. As noted earlier, the consequences of errors in Romeo's context are not as severe as those present here. Nevertheless, some deference to professional decisions is not inconsistent with our holding on procedural due process.

I agree with the court’s holding that the administrative procedures designed by New Jersey, which consist of review by professionals in the mental health field, are adequate to protect the patient’s constitutional rights. Introduction of the least intrusive means standard into these procedures does not supplant professional judgment; it merely adds an important factor to the analysis underlying that judgment. The least intrusive test does not constitute undue interference with professional judgment, and is surely defensible to the extent it mandates serious and deliberate consideration of the patient’s interest.

Moreover, the least intrusive means standard does not mandate that the state forfeit its interests or leave them unfulfilled. It simply requires a carefully considered choice. That burden is certainly minimal when compared to the potential consequences to the patient. As the Supreme Court has stated, “The individual should not be asked to share equally with society the risk of error when the possible injury to the individual is significantly greater than any possible harm to the state.” Addington v. Texas, 441 U.S. 418, 427, 99 S.Ct. 1804, 1810, 60 L.Ed.2d 323 (1979).

One other factor mentioned in Romeo —the financial constraints under which state institutions necessarily operate — merits some brief comment. That consideration was mentioned in our earlier opinion as one reason why the simplified administrative procedure we approved was more acceptable than the elaborate plan devised by the district court. See 653 F.2d at 851. I recognize the very serious financial problems of state institutions, but I do not believe that they militate against use of the least intrusive means test. To the contrary, the realization that state institutions are understaffed, underfinanced, and overcrowded only underscores my concern that the staff may undervalue or overlook the patient’s interest. Concern for the rights of the patient must not be sacrificed for the convenience of the state.

It is worth remembering that patients at these mental institutions are unwilling wards of the state. They have done nothing to merit anything but consideration and compassion. It surely is not asking too much of the state to require it to balance its legitimate needs with a regimen that infringes on the patient’s constitutional rights to the least intrusive extent.

. Although the facts of Youngberg concerned the mentally retarded, the language and analysis of the opinion clearly apply to the class of persons who have been committed involuntarily. Cf. Youngberg, 457 U.S. at 315-16, 102 S.Ct. at 2458.

. There is no suggestion in the present case that the involuntary commitments of the members of the plaintiff class were illegal.

. Justice Brennan joined the Court’s opinion in Romeo, 457 U.S. at 325, 102 S.Ct. at 2463, but commented in his dissent in Jones v. United States, — U.S. —, —, 103 S.Ct. 3043, 3059-61, 77 L.Ed.2d 694 (1983), on the “psychopharmacological management of the hospitalized person.” “Although this Court has never approved the practice, it is possible that an inmate will be given medication for reasons that have more to do with the needs of the institution than with individualized therapy. See Mills v. Rogers, 457 U.S. 291, 298, 102 S.Ct. 2442, 2448, 73 L.Ed.2d 16 (1982); Rennie v. Klein, 653 F.2d 836, 845 (CA3 1981) (en banc). We should not presume that he lacks a compelling interest in having the decisions to commit him and to keep him institutionalized made carefully, and in a manner that preserves the maximum degree of personal autonomy." (Emphasis added.)

. Although this court’s opinion in Romeo had described the restraints as “shackles,” 644 F.2d 147 (3d Cir.1980), the Supreme Court noted that the measures generally used were “ ‘soft’ restraints, for the arms only,” 457 U.S. at 310 n. 4, 102 S.Ct. at 2455 n. 4, and that the program designed for Romeo called for “use of ‘muffs’ on [his] hands for short periods of time, i.e., five minutes, to prevent him from harming himself or others,” id. at 311 n. 8, 102 S.Ct. at 2455 n. 8.

. Additional descriptions of the side effects of antipsychotic drugs can be found in Plotkin, “Limiting the Therapeutic Orgy: Mental Patient’s Right to Refuse Treatment,” 72 N.W.U. L.Rev. 461,474-78 (1978); Rhoden, “The Right to Refuse Psychotropic Drugs,” 15 Harv.C.R.-C.L.L.Rev. 363, 375-82 (1980).

. References to the literature on the use and abuse of antipsychotic drugs may be found in Comment, “The Scope of the Involuntarily Committed Mental Patient’s Right to Refuse Treatment with Psychotrophic Drugs: An Analysis of the Least Restrictive Alternative Doctrine,” 28 Vill.L.Rev. 101 (1983); Note, “A Common Law Remedy for Forceable Medication of the Institutionalized Mentally 111,” 82 Colum.L.Rev. 1720 (1982).

. Mills v. Rogers, 457 U.S. 291, 102 S.Ct. 2442, 73 L.Ed.2d 16 (1982), is further evidence that the Supreme Court did not require the imposition of the Romeo standard in the antipsychotic drug cases. In Mills, a case similar to the one a4 hand, the Court remanded to the court of appeals for reconsideration in light of intervening changes in state law. Although the Court of Appeals for the First Circuit had adopted the least intrusive test, as had we, the Supreme Court made no adverse reference to the test in its opinion directing a remand.