In Re Qawi

BROWN, J., Dissenting.

In designating rights retained by mentally disordered offenders (MDO’s) upon commitment pursuant to Penal Code section 2972, the Legislature did not set a broad or unqualified standard. Indeed, the statute could hardly be more precise in specifying its intended limits. Rather than respecting this carefully crafted legislative scheme, however, the majority ranges well outside the designated boundaries and formulates an answer that is at best a patchwork of extraneous and irrelevant statutory and decisional law. At worst, it will achieve the opposite of the legislative intent: MDO’s permitted to refuse antipsychotic medication will not receive necessary treatment for their mental disorders and their refusal will effectively subject them to indefinite commitment with little prospect of habilitation, precisely the type of warehousing the Legislature sought to avoid. I dissent.

The MDO Act (Pen. Code, § 2960 et seq.) comprises comprehensive legislation addressing both the need to protect the public from the danger *29posed by mentally disordered offenders and the state’s interest in providing treatment for such individuals to the fullest extent possible. Accordingly, the commitment of MDO’s is within the purview of an entirely different statutory scheme from the Lanterman-Petris-Short Act (LPS Act; Welf. & Inst. Code, § 5000 et seq.1), and provisions of the latter are applicable to MDO’s only to the extent provided by the Legislature. (Cf. Pen. Code, § 2974 [upon release from prison or termination of parole, an inmate who does not come within the provisions of the MDO Act but who is a danger to self or others or is gravely disabled may be placed in a state hospital pursuant to the LPS Act].)

The standards and procedures for commitment or recommitment of an MDO upon termination of parole are set forth in Penal Code section 2972. The individual’s MDO status is determined at a jury or court trial by proof beyond a reasonable doubt. (Pen. Code, § 2972, subd. (a).) The trier of fact must find “that the patient has a severe mental disorder, that the patient’s severe mental disorder is not in remission or cannot be kept in remission without treatment, and that by reason of his or her severe mental disorder, the patient represents a substantial danger of physical harm to others . . . .” (Id., § 2972, subd. (c).) Thus, the premise of such commitment—indeed, of the entire MDO Act—is the “substantial danger of physical harm” posed by the MDO’s “severe mental disorder.” (See id., §§ 2962, subd. (d)(1), 2966, subd. (c), 2970; see generally id., § 2960.) As defined in Penal Code section 2962, subdivision (f), “ ‘substantial danger of physical harm’ does not require proof of a recent overt act.”

Although the primary purpose of the MDO Act is to ensure public safety, amelioration or habilitation of the MDO’s condition is also an important goal. To that end, commitment “places an affirmative obligation on the treatment facility to provide treatment for the underlying causes of the person’s mental disorder.” (Pen. Code, § 2972, subd. (f).) Because commitment under Penal Code section 2972 is nonpunitive, the Legislature has further provided that “the person committed shall be considered to be an involuntary mental health patient” “entitled to those rights set forth in Article 7 ... of Chapter 2 of Part 1 of Division 5 [sections 5325 through 5337] of the Welfare and Institutions Code [(hereafter article 7)]” (Pen. Code, § 2972, subd. (g)), which sets forth the legal and civil rights of persons involuntarily detained because of mental disorders.

Sections 5325 and 5325.1 set forth various rights of involuntary mental patients, but neither contains any reference to the right to refuse antipsychotic medication. The only provision addressing this question is section 5325.2, which expressly reserves “the right to refuse treatment with antipsychotic *30medication,” but only to those persons “subject to detention pursuant to Section 5150, 5250, 5260, or 5270.15 . . . .” (See also § 5332.) The common thread of these latter statutes is that they govern short-term commitments— ranging from an initial 72-hour evaluation to 14- and 30-day periods of intensive treatment—of persons who are gravely disabled, chronic alcoholics, or believed to be a danger to self or others. The purpose of these limited commitments is to evaluate the nature of the person’s mental disorder, stabilize his or her condition, and determine whether further confinement and treatment are necessary. Therefore, although the LPS Act may incorporate the general common law right to refuse medical treatment (see Riese v. St. Mary’s Hospital & Medical Center (1987) 209 Cal.App.3d 1303 [271 Cal.Rptr. 199]), it expressly limits that right with respect to antipsychotic medication.

Conspicuously absent from the enumeration in Welfare and Institutions Code section 5325.2 are MDO’s. The reason is readily apparent: Pursuant to Penal Code section 2972, MDO’s have already been committed for one year under standards and procedures that have identified the nature of their disorder and confined them specifically for treatment thereof. (See generally, Pen. Code, § 2960.) Since Penal Code section 2972, subdivision (g), incorporates only those rights set forth in article 7 of the LPS Act, and article 7 accords the right to refuse antipsychotic medication only to certain short-term committees, the conclusion is inescapable that MDO’s do not have that prerogative. Since they cannot refuse this medication, the question of their competency is moot. (Cf. Welf. & Inst. Code, § 5332.)

The majority concludes otherwise based on a free-ranging and circuitous foray well outside the designated confines of article 7 of the LPS Act. First, the majority determines that “the reasoning of Riese [v. St. Mary’s Hospital & Medical Center, supra, 209 Cal.App.3d 1303] makes clear that the right [to refuse antipsychotic medication] does not apply solely to short-term LPS patients.” (Maj. opn., ante, at p. 18.) The legislative chronology does not bear out this assertion. Riese was decided in 1987, four years before the enactment of section 5325.2. (See Stats. 1991, ch. 681, § 2, p. 3078.) While it is not entirely clear whether the Legislature was reacting to the holding in Riese that persons involuntarily detained under the LPS Act have the right to refuse antipsychotic medication, it is clear that such right is now statutorily limited to short-term involuntary detainees. A contrary finding defies statutory language that could hardly be more explicit. Moreover, Riese was decided two years after the language incorporating article 7 of the LPS Act into the MDO Act. (See Stats. 1985, ch. 1418, § 1, pp. 5009-5011.) The Legislature thus would have had no reason to understand it was impliedly according MDO’s the right to refuse antipsychotic medication.

*31The majority’s discussion of section 5300 is equally off point. That section applies to another specific class of detainees—those who, after a 14-day period of intensive treatment pursuant to section 5250, may be further confined for treatment up to 180 days longer upon a finding of dangerousness as defined in the statute. In addition to the fact that section 5300 does not appear in article 7 of the LPS Act, this provision simply has no relevance to MDO’s who are committed under an independent statutory scheme, with its own definitional criteria. To the extent Welfare and Institutions Code section 5300 has any significance, it underscores the implicit nexus drawn by the Legislature between dangerousness and the denial of a right to refuse antipsychotic medication. By definition, MDO’s have been found—at trial and beyond a reasonable doubt—to “represent^ a substantial danger of physical harm to others” by virtue of a “severe mental disorder.” (Pen. Code, § 2972, subd. (c).) This standard is at least as exacting as Welfare and Institutions Code section 5300 and with greater procedural protections. Nonetheless, the majority’s insistence that MDO’s are entitled to an additional finding of dangerousness renders competing statutory schemes muddled and potentially conflicting, where heretofore they operated in complete harmony because each governed a distinct class of committees.

Equally unpersuasive is the implication that the majority’s holding is necessary to conform the right of MDO’s to refuse antipsychotic medication to that of non-MDO mentally ill state prisoners. (See Keyhea v. Rushen (1986) 178 Cal.App.3d 526 [223 Cal.Rptr. 746].) Again, the majority has far exceeded the bounds expressly imposed by the Legislature in designating the rights of MDO’s. The right of state prisoners in this regard derives from Penal Code section 2600, both its prior version as construed by the Court of Appeal in Keyhea and its current version as amended in conformance with the holding in Keyhea. In contrast, the rights of MDO’s derive from Penal Code section 2972 and its incorporation of article 7 of the LPS Act. In reaching its conclusions regarding the rights of state prisoners, the Keyhea court did not reference article 7, but instead drew its comparisons from the statutory provisions governing LPS Act conservatees (Welf. & Inst. Code, § 5350 et seq.) and adult nonconservatees (Prob. Code, § 3200 et seq.). (Keyhea, at pp. 534-540.) By contrast, the Legislature confined the rights of MDO’s to article 7 and, significantly, did not alter that designation when it revised Penal Code section 2600 to incorporate the Keyhea injunction.

The majority’s .holding also disregards a cardinal principle of statutory construction that courts must consider “the object to be achieved and the evil to be prevented by the legislation. [Citation.]” (Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1159 [278 Cal.Rptr. 614, 805 P.2d 873].) One express purpose of the MDO Act is to provide MDO’s “with an appropriate level of mental health treatment” initially while in prison and later upon release. (Pen. Code, § 2960.) Even outside the mental health *32community, it is well recognized that for some individuals antipsychotic medication may be a necessary component of any effective treatment program. In giving control of that decision to the patient unless incompetent or dangerous within the meaning of Welfare and Institutions Code section 5300, the majority’s holding not only upsets the treatment mechanism by preventing the attending mental health professionals from exercising their best judgment and discharging their duty “to provide treatment for the underlying causes of the person’s mental disorder.” (Pen. Code, § 2972, subd. (f).) The holding also makes it a virtual certainty that MDO’s who choose to refuse appropriate and necessary medication will be warehoused indefinitely because their treatment program will likely be ineffective and thus fail to keep their mental disorder in remission. (See id., § 2972, subd. (c).)

Moreover, the treatment of MDO’s already has considerable oversight, in part, to protect against the misuse or overuse of antipsychotic medication. As counsel for the director of Napa State Hospital represented at oral argument, treatment programs are designed by a team of mental health professionals and are reviewed quarterly. MDO’s may participate in the process if they desire and thus have the opportunity to provide input on the type and amount of antipsychotic medication. An independent internal review is also available on request. Those conducting the independent review are not part of the treatment team and therefore have no predetermined commitment to a particular medication regime. Counsel represented that on at least one occasion, the independent review resulted in a termination or modification of medication.

The authority of the State Department of Mental Health to adopt regulations to modify the rights of MDO’s “as is necessary in order to provide for the reasonable security of the inpatient facility in which the patient is being held” (Pen. Code, § 2972, subd. (g)) does not ameliorate the negative impact of the majority’s holding for several reasons. First, setting aside the time and effort in complying with the Administrative Procedures Act (see Gov. Code, § 11340 et seq.) that promulgation of such regulations would entail, the department’s ability to formulate what would have to be “one size fits all” regulations is questionable. At the very least, the language of the MDO Act, which imposes a duty to treat the individual MDO, runs counter to the formulation of generic regulations regarding antipsychotic medication. Second, under the terms of Penal Code section 2972, subdivision (g), it is unclear on what basis the department would be able to justify such regulations as necessary to the security of every inpatient facility. (See Gov. Code, § 11342.2.) Third, any such justification would likely be based on circumstances that render an MDO dangerous within the meaning of Welfare and Institutions Code section 5300, in which case the right to refuse antipsychotic medication would terminate, rendering a regulation to the same effect superfluous. Fourth, imposing regulations reduces or eliminates the very *33flexibility the current system depends upon to tailor treatment programs to the specific needs of each MDO and adjust treatment as warranted.

Sympathy for someone in respondent’s circumstances is understandable; but that is not the question before the court. In enacting the MDO Act, the Legislature has taken into account, and balanced, not only sympathy for the MDO’s plight but the additional, and ultimately more substantial, concerns for public safety and treatment of the MDO’s mental disorder. Without justification or legal support and with at best limited knowledge of the practical circumstances, the majority has displaced that careful balance with a rule that may in the abstract seem fair and compassionate, but that is unworkable and unrealistic while undermining legislative intent. We also have no reason to believe treatment of MDO’s, including the administration of antipsychotic medication, is not handled in accordance with the highest medical and legal standards as well as their best interests. I would, therefore, in this case more than ever, adhere closely to the statutory language and defer to the policy judgments of the Legislature.

Further statutory references are to the Welfare and Institutions Code unless otherwise indicated.