Department of Health & Mental Hygiene v. Kelly

Concurring Opinion by WILNER, J., which HARRELL, J., joins.

I concur in the Court’s judgment because, on this record, I think it is right. My concern is that the question articulated *437by the Department is not the one actually presented in the case, and I fear that the answer that the Court proposes to give to that question may produce a result that is inappropriate, inconsistent with the legislative intent, and wholly illogical.

In a nutshell, the Court proposes to hold that, whenever the psychiatrists in a State hospital to which a criminal defendant has been committed by a court pursuant to § 3-106 of the Criminal Procedure Article (CP) believe it necessary to forcibly medicate the person, the focus must always be on whether, without the medication, the person will be dangerous to self or others within the institutional setting. In the Court’s view, whether, without the medication, the person will have to remain hospitalized for a significantly longer period than would otherwise be necessary because he or she will continue to be a danger to self or others upon release to the community is, as a matter of law, irrelevant. In my view, that is much too broad a statement. It is one not in keeping with § 10-708(g)(3) of the Health-General Article (HG) and creates an absurd “Catch-22” anomaly that cannot possibly have been intended by the General Assembly and that is not Constitutionally required.

It is important at the outset to focus only on what is before us—a criminal defendant committed by a court pursuant to CP § 3-106. We are not dealing here with a patient committed through civil proceedings, whose ultimate release is governed by HG § § 10-801 through 10-813 (other than § 10-803, which deals with voluntary admissions). Although some of the analysis may be the same in both situations, there are differences in both the statutory language and the procedures for obtaining release from the confinement. A criminal defendant committed pursuant to CP § 3-106 may not be released by the hospital, but only by the court, and, unlike the civilly committed patient, he or she is not entitled to a jury trial on the issues pertinent to release. Thus, with respect to the criminal defendant, there is a clear and direct connection between the criteria set forth in HG § 10-708(g)(3), governing forcible medication and CP § 3-106, governing release from *438hospital confinement that needs to be considered. My analysis in this concurring opinion is in the context of the criminal defendant

I think that, in determining whether the focus in that setting should be on dangerousness within the institutional setting or dangerousness within the broader community, the courts must look at the nature and purpose of the prescribed medication. If the purpose of the medication, alone or in combination with other medications or therapies, is simply behavior control—to calm the patient and keep him or her calm and compliant—I agree that the focus must be limited to dangerousness within the institutional setting. If, on the other hand, the State can demonstrate that the purpose of the medication, alone or in combination with other medications or therapies, is not just to suppress but to treat and ameliorate the symptoms that caused the patient to be committed under CP § 3-106 in the first place, the focus must necessarily be on whether (1) without the medication, those symptoms will not be treated or ameliorated and the patient will therefore remain ineligible for release under CP § 3-106, and (2) with the medication, the patient will likely become eligible for release. The burden is on the State to show both that the prescribed medication is for that broader purpose and that, alone or in conjunction with other medications or therapies, it has a reasonable chance of achieving that objective without undue side effects. I concur with the Court’s judgment in this case because I do not believe that showing was made here.

As somewhat of a belated preface, it is important to note that the case before us is moot, a matter overlooked by the Court. As we most recently held in In re Kaela C., 394 Md. 432, 452, 906 A.2d 915, 927 (2006), “a case is moot when there is no longer any existing controversy between the parties at the time that the case is before the court, or when the court can no longer fashion an effective remedy.” See also Hammen v. Baltimore Police, 373 Md. 440, 449, 818 A.2d 1125, 1131 (2003) and cases cited there. This case involves our review of an order issued by an Administrative Law Judge on September 1, 2005, approving the forcible medication of Kelly. *439By its own terms, however, that order was effective for only 90 days; it expired after the 90th day, and, so far as this record reveals, neither it nor any renewal of it remains in effect. Currently, therefore, there is no order in effect for us to review. When the challenged order has expired, the case is moot. Coburn v. Coburn, 342 Md. 244, 250, 674 A.2d 951, 954 (1996).

Although our routine response when a case becomes moot is to dismiss the appeal -without addressing the merits, which is what we did in Dept. of Health v. Martin, 348 Md. 243, 703 A.2d 166 (1997), we have, on rare occasions, exercised our discretion to consider the merits of such an appeal “where the urgency of establishing a rule of future conduct in matters of important public concern is imperative and manifest.” Matthews v. Park & Planning, 368 Md. 71, 96, 792 A.2d 288, 303 (2002), quoting from Lloyd v. Supervisors of Elections, 206 Md. 36, 43, 111 A.2d 379, 382 (1954). See also Hammen v. Baltimore Police, supra, 373 Md. at 450, 818 A.2d at 1131. Such an urgency exists “if the public interest clearly will be hurt if the question is not immediately decided, if the matter involved is likely to recur frequently, and its recurrence will involve a relationship between government and its citizens.” Id.

This is such a case, so the Court is therefore right to consider the matter. Decisions involving the forcible medication of criminal defendants committed to State hospitals pursuant to CP § 3-106 are matters of important public concern and involve a relationship between the government and its citizens. The questions raised in this case are likely to recur and will nearly always be moot before an appeal can be perfected and resolved. Kelly remains hospitalized and is continuing to refuse medication. Any order for forcible medication may not last more than 90 days, although it may be renewed if the patient continues to refuse the medication. See HG § 10-708(m).

As the Court points out, Kelly was charged in the Circuit Court for Montgomery County with two counts each of first *440degree murder, rape, burglary, and robbery with a deadly weapon, one count of first degree assault, and assorted lesser charges. It appears that the murder charges qualified Kelly for the death penalty. Observing his behavior at a pretrial hearing, the court was concerned as to whether he was competent to stand trial. Accordingly, it held a competency hearing and referred Kelly to Clifton T. Perkins Hospital, a State maximum security psychiatric hospital, for evaluation. The evaluation report concluded that Kelly was not competent to stand trial because, as the result of delusional symptoms derivative of a mental disorder, he was unable to understand the object of the proceedings against him or assist in his defense. The report also found that Kelly was dangerous because he had a history of assaultive and violent behavior and was charged with serious crimes.

In June, 2004, after conducting a hearing, the court agreed that Kelly was not competent to stand trial and that, because he was dangerous to himself or the person or property of others in the community, he could not be released. In that regard, the court observed that “[gjiven the gravity of the charges pending against the defendant, it is fair to say that, if proven, the charged actions of the defendant represent a risk to the public of the most dangerous degree.” (Emphasis added.) Kelly was therefore committed to Perkins pursuant to CP § 3—106(b).

The commitment, under the statute, is to remain “until the court is satisfied that the defendant no longer is incompetent to stand trial or no longer is, because of ... a mental disorder, a danger to self or the person or property of others.” CP § 3-106(b)(l). It is implicit in that statutory requirement that Kelly will remain committed until such time as the court is satisfied that he is no longer incompetent to stand trial or no longer a danger to himself or others in the community. In any release decision based on lack of dangerousness, the court’s focus will clearly be—indeed, must be—on dangerousness in the community, not dangerousness in the institutional setting. That proposition is not contested by Kelly and seems to be acknowledged by the Court. Because, despite his belief *441that he is not mentally ill, Kelly has never sought to convince the court that he is no longer a danger to himself or to the person or property of others for purposes of CP § 3—106(b), and because the court has not come to any such conclusion on its own, its finding of dangerousness in the community, made in June, 2004, remains extant.

As the Court notes, notwithstanding the findings of the psychiatric evaluation and the judicial determination to the contrary, which he has never challenged in court, Kelly continued to maintain that he does not have a mental disorder and is not delusional, and, in November, 2004, he refused to continue taking the antipsychotic medications that had been prescribed for him and that he had been taking since June. The hospital then convened a clinical review panel pursuant to HG § 10-708(c) to examine whether those medications should be administered over his objection.

Section 10-708(b) states the general rule that medication may not be administered to an individual who refuses the medication, except “(1) [i]n an emergency, on the order of a physician where the individual presents a danger to the life or safety of the individual or others; or (2) [i]n a nonemergency, when the individual is hospitalized involuntarily or committed for treatment by order of a court and the medication is approved by a panel under the provisions of this section.” Section 10-708(g) sets forth the criteria, or requirements, for approval of forced medication by the panel in the non-emergency situation. That is what is at issue in this case. The section provides, in relevant part:

“The panel may approve the administration of medication or medications and may recommend and approve alternative medications if the panel determines that:
(1) The medication is prescribed by a psychiatrist for the purpose of treating the individual’s mental disorder;
(2) The administration of medication represents a reasonable exercise of professional judgment; and
(3) Without the medication, the individual is at substantial risk of continued hospitalization because of:
*442 (%) Remaining seriously mentally ill with no significant relief of the mental illness symptoms that cause the individual to be a danger to the individual or to others; [or]
(ii) Remaining seriously mentally ill for a significantly longer period of time with mental illness symptoms that cause the individual to be a danger to the individual or to others ...”

(Emphasis added).

Section 10-708(h)(l) requires that the panel base its decision on “its clinical assessment of the information contained in the individual’s record and information presented to the panel.” Subsection (h)(3) adds that the panel may not approve the administration of medication if “alternative treatments are available and are acceptable to both the individual and the facility personnel who are directly responsible for implementing the individual’s treatment plan.”

There does not seem to be any serious dispute here that the medications, or at least some of them, were prescribed by a psychiatrist for the purpose of treating Kelly’s mental disorder. Nor, other perhaps than as a part of his claim that the panel applied the wrong standard in its consideration of his alleged dangerousness to self or others, has he directly attacked the panel’s conclusion that administration of the proposed medication represents a reasonable exercise of professional judgment. The basic issue in this case is whether the panel and the ALJ erred in concluding that, without medication, which Kelly refused to take based on his belief that he was not mentally ill at all, Kelly would be at substantial risk of continued hospitalization because either (1) he would remain seriously mentally ill with no significant relief of mental illness symptoms that cause him to be a danger to himself or others, or (2) he would remain seriously mentally ill for a significantly longer period of time with mental illness symptoms that cause him to be a danger to himself or others. In that regard, the more specific issue is whether, in determining whether his symptoms cause him to be a danger to himself or others, the panel and the ALJ are limited to determining dangerousness *443in the context of his confinement in the hospital or may consider whether, if released, he would be a danger to himself or others in the community.

The panel in this case confirmed a mental disorder that consisted of Delusional Disorder, Persecutory and Grandiose Type, based upon the following symptoms: “Delusions regarding his criminal case, that his charges were falsely pressed against him; delusions regarding having special abilities; that his attorney and the judge are involved in the case against him.” Upon that diagnosis, it approved nine medications, six of which were to treat the symptoms of his mental disorder. Although we may infer that the panel members knew the nature of and purpose for each medication, it made no findings in that regard with respect to the individual medications— what each was intended to do, individually or in combination with the other medications or therapies. Rather, the panel determined generally that the benefits of taking those medications “include reduction in the symptoms of his mental disorder” and that the benefits of refusing the medications “would include lack of exposure to side effects.” The panel found that alternative treatment—milieu therapy and psychoeducational efforts—had not been effective.

The critical finding of the panel was that, without the recommended medications, Kelly would be at substantial risk of continued hospitalization because of (1) remaining seriously mentally ill with no significant relief of the mental illness symptoms that cause him to be a danger to himself or others and (2) remaining seriously mentally ill for a significantly longer period of time with mental illness symptoms that cause him to be a danger to himself or others.

On the record available to us, it appears that those findings were conclusory in nature. We may assume that the panel had before it Kelly’s medical and hospital records, but those records are not before us. The record that we have (and that the Circuit Court had) contains no delineation of the nature and purpose of the various medications, much less any clear, factually supported estimate of whether they would likely be *444effective in sufficiently ameliorating Kelly’s symptoms to the point of hastening his release by the court pursuant to CP § 3—106(b).

Kelly appealed the panel’s decision. At a hearing before an Administrative Law Judge (ALJ), Dr. Robert Wisner-Carlson, Kelly’s treating psychiatrist, testified at some length, commencing with his views about Kelly’s prognosis:

“We have to talk about the prognosis for delusional disorder in general. There has been some controversy about that. Delusional disorder is a chronic condition and without treatment tends to go on for years and decades once it starts, although it can wax and wane some. It is thought that it doesn’t respond—it has been felt that it doesn’t respond well to treatment, but indeed more modern studies have indicated that that really relates to the patient’s noncompliance with medication treatment.
And with medication treatment, it is fairly treatable, and that’s been my experience treating the condition. So without treatment, his prognosis is poor. With treatment, he has a moderate prognosis.”

When asked about the treatment for Kelly’s mental illness, Dr. Wisner-Carlson responded:

“The main treatment is the medication. He’s also—and that medication right now is Risperidone. And the current dose is eight milligrams. And he also takes a medication, Benztropine, for side effects, and the dose of that is one milligram. He’s involved in various group therapies on the ward, types of informal, individual therapy—individual therapy of the ward, and the privilege level system, which is a form of behavior therapy, if you will.”

The doctor added that, of the nine medications approved by the panel, three were actually prescribed for oral admission, with “back-up medication that he would receive if he refused the oral medication and did not agree to take it by mouth.” When addressing the benefit of the medications and their side effects, Dr. Wisner-Carlson opined that “the anticipated benefits are to treat his mental disorder and to—to the point that *445he could be allowed to be discharged from the hospital” and that “he’s had minimal side effects from the medication.”

In summary, Dr. Wisner-Carlson asserted that Kelly would continue to respond and improve with medication but that, without medication he was at a substantial risk of continued hospitalization because of remaining seriously ill (1) with no significant relief of symptoms causing himself to be a danger to himself or others, and (2) for a significantly longer period of time with symptoms causing himself to be a danger to himself or others, and further, that without medication Kelly could not be discharged to a less restrictive setting.

After the hearing, the ALJ concluded, as a matter of law, that the hospital had shown by a preponderance of the evidence that Kelly should be medicated with the psychotherapeutic drugs approved by the panel. She found that Kelly was, in fact, delusional, that the proposed medications were prescribed for the purpose of treating the delusions, and thus Kelly’s mental disorder, and that the side effects of those medications were not so severe as to make their administration unreasonable.17

Kelly argued before the ALJ that, in determining whether, for purposes of HG § 10—708(g)(3)(i) and (ii), a finding had to be made that, absent the medication, Kelly would be dangerous to himself or others while confined, in the hospital, rather than to the public at large upon any release. The ALJ concluded that was not necessary, and that she could rely on the finding of dangerousness made by the court after the competency hearing. That was critical, for the evidence showed that Kelly had not been in seclusion or restraints, had not been on any special observation, and had not had any special intervention in regard to assaultiveness, and yet, even while not taking the medications, he had never threatened or assaulted anyone in the hospital.

*446Relying entirely on the decision of the Court of Special Appeals in Martin v. Dept. of Health, 114 Md.App. 520, 691 A.2d 252 (1997)—a decision that this Court later vacated (see Dept. of Health v. Martin, supra, 348 Md. 243, 703 A.2d 166) and that therefore has utterly no precedential value—the Circuit Court for Baltimore City, in Kelly’s action for judicial review, reversed the ALJ’s decision and concluded that HG § 10-708(g) “require[s] evidence that an involuntarily committed individual is a danger to himself or others in the facility to which he has been involuntarily admitted, rather than to society generally upon his release.” (Emphasis added.)

The question framed by the Department and addressed by the Court in this appeal is whether the Circuit Court erred in requiring the Department to show “that an involuntary patient is a danger to himself or others in the facility before the patient may be forcibly medicated when, without medication, the patient will remain hospitalized indefinitely.” (Emphasis added.) As noted, I think that is too broad a question. I believe that there is a threshold question which must be answered before the question framed by the Department can properly be considered: what is the purpose of each medication proposed to be forcibly administered? Is it for patient management in the hospital or for broader therapeutic purposes, and if it is for the latter, is it likely to be effective? This is, to me, a critical distinction. If the medications are for patient management purposes, the panel, the ALJ, and the court on judicial review need consider only the dangerousness of the patient within the hospital, for that is all that is relevant.

If it is asserted, however, that the medications are being prescribed for the purpose of ameliorating the symptoms that preclude the patient from being released because, so long as the patient suffers from those symptoms, he or she will continue to be dangerous to self or others in the community, the panel, ALJ, and court must necessarily look to dangerousness outside of the hospital setting. Otherwise, § 10-708(g)(3) would have no meaning.

*447In that subsection, assuming the conditions in subsections (g)(1) and (2) are met, the Legislature has affirmatively authorized forcible medication upon a finding that, without the medication, the patient is “at substantial risk of continued hospitalization” because of remaining seriously mentally ill (1) “with no significant relief of the mental illness symptoms that cause the individual to be a danger to the individual or to others” or (2) “for a significantly longer period of time with mental illness symptoms that cause the individual to be a danger to the individual or to others.” When the patient is under court commitment pursuant to CP § 3-106, the issue of dangerous for purposes of HG § 10-708(g)(3) must be viewed from the perspective of the community, because that is what will control the patient’s release. Without focusing on that, no finding could ever be made under § 10-708(g), and there could therefore never be any forcible medication of such a patient except in an emergency situation under HG § 10-708(b)(l) or strictly for behavior control.

Kelly, and to some extent the Court, place weight on some language in Washington v. Harper, 494 U.S. 210, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990). That case, to me, is largely irrelevant. It dealt with the forced medication of a mentally ill prison inmate, who would remain incarcerated to serve his term with or without the medication. Naturally, the State’s focus and that of the Supreme Court was on dangerousness within the institution; no other focus would be relevant. HG § 10-708(g) does provide, and, to me, requires, a different focus, at least when the patient was committed pursuant to CP § 3-106.

The legislative history of HG § 10-708, recounted by the Court, demonstrates that the Legislature intended to put tight reins on the forced medication of involuntarily committed patients and not to allow the kind of regime portrayed in One Flew Over The Cuckoo’s Nest. If the doctors believe that forced medication is necessary, it is incumbent upon them to establish precisely why the medication is both necessary and would be effective to achieve the objective set forth in the statute. Bald, general, unsupported opinions that the medi*448cation is necessary or would be helpful do not suffice. The record should contain clear evidence of what each proposed medication is designed and effective to do, alone or in combination with other medications and therapies, and precisely how and why, without that medication, the conditions stated in § 10-708(g)(3) will, in fact, exist. The record before us fails to show that such evidence was presented to the panel, and even the record before the ALJ, which is somewhat more detailed, is legally insufficient. That is why I would affirm the judgment of the Circuit Court.

Judge HARRELL has authorized me to state that he joins in this concurring opinion.

. Kelly had been on the medication previously and had been monitored for side effects. He claimed that on one night he felt unwell, but the evidence showed that, by taking two Tylenol pills, the symptoms disappeared.