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RENNIE v. KLEIN

September 14, 1979

JOHN E. RENNIE, Plaintiff, CAROLINE MAUGER, EUGENIO BURGEOS, LEON ROSSI, HAZEL MONCRIEF, ERNIE WELKER, MARY JANE WEISS, MARGARET MARY MC GRATH, JOSEPH KAMIENSKI, Intervenors, on behalf of themselves and all others similarly situated,
v.
ANN KLEIN, Commissioner, Department of Human Services; MICHAIL ROTOV, M.D., Director of the Division of Mental Health and Hospitals; MAX PEPERNICK, M.D., Acting Medical Director at Ancora Psychiatric Hospital; ROBERT WALLIS, Chief Executive Officer at Ancora Psychiatric Hospital; ENGRACIO BALITA, CONSUELO SANTOS, VICTOR IVANOV, GERALD ABRAHAM, Assistant Medical Directors at Ancora Psychiatric Hospital, Defendants.



The opinion of the court was delivered by: BROTMAN

OPINION ON PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

This is a motion for a preliminary injunction by a class composed of patients in five hospitals for the mentally ill operated by the State of New Jersey. Plaintiffs seek to restrain the hospitals and their staffs from forcibly administering drugs to them unless a hearing is held and certain conditions are met. The court holds that plaintiffs do have a constitutional right to refuse medication in certain circumstances, and has fashioned a decree to enforce that right.

 This litigation began when a complaint was filed by plaintiff John E. Rennie on December 22, 1977. The defendants were Ms. Ann Klein, Commissioner of the Department of Human Services of the State of New Jersey, Dr. Michail Rotov, Director of the Department's Division of Mental Health and Hospitals, and various officials at Ancora Psychiatric Hospital, where Mr. Rennie is an involuntarily committed patient. The complaint charged defendants with violations of four rights: (1) the right to refuse medication in non-emergent circumstances, (2) the right to treatment, (3) the right of access to counsel, and (4) the right to be free from physical abuse while in custody.

 Since the complaint was filed, the litigation has focused on the right to refuse treatment, and, tangentially, on the right to counsel, while the rights to adequate treatment, safe confinement, and access to counsel generally have been reserved for later consideration. On December 20, 1978, the court imposed a temporary restraining order on defendants preventing them from medicating Mr. Rennie against his will beyond a maintenance dosage except in emergencies. Plaintiff then moved for a preliminary injunction and the court held fourteen days of hearings between January 13 and April 28, 1978. On April 18, 1978, the temporary restraining order was dissolved after a consensus was reached concerning the proper treatment for Mr. Rennie at that time. However, on May 19 the plaintiff again sought temporary relief, which was denied pending a resolution of the preliminary injunction motion.

 The court issued its decision on November 9, 1978. The opinion, reported at 462 F. Supp. 1131, provides a detailed chronicle of Mr. Rennie's medical history and the litigation up to that time. It also discusses the beneficial and detrimental effects of various medications and the several legal theories asserted by plaintiff to support a right to refuse treatment.

 This court concluded that a right to refuse should be recognized, based on the constitutional right of privacy. 462 F. Supp. at 1144-45. However, because of countervailing state interests, the right must be a qualified one, and the following four factors must be considered in applying the right in a given situation: (1) the patient's physical threat to other patients and staff at the institution, (2) the patient's capacity to decide on his particular treatment, (3) the existence of any less restrictive treatments, and (4) the risk of permanent side effects from the proposed treatment. Id. at 1145-48.

 This court also stated that a mental patient has a right to procedural due process, and noted in dictum that this might include a hearing and representation by a lawyer and independent psychiatrist before drugs are forcibly administered in a non-emergent situation. Id. at 1147-48.

 It was held that, because of the extended court hearings, Mr. Rennie had received all the process which he was due. Id. at 1147. It was also noted that Mr. Rennie was not receiving undesired medication; therefore no injunction was issued. Id. at 1148 & n. 6. However, Mr. Rennie's condition worsened shortly after that time and the hospital again sought to administer thorazine against the patient's will. After a hearing on December 7, 1978, the court denied Mr. Rennie's renewed motion for a preliminary injunction. In an opinion issued December 12, the court found that Mr. Rennie's capacity was severely limited at that time and that thorazine was the least restrictive means of stabilizing his condition. Therefore, the four factors indicated that an injunction should not issue. 462 F. Supp. 1131 at 1151, 1153. *fn1"

 The court also conditionally certified two statewide subclasses asserting the right to refuse treatment and to due process before treatment is forcibly administered. The amended complaint focused exclusively on the forcible administration of medication. See P 13A. One subclass is composed of all adult patients involuntarily committed to five mental health facilities operated by the Division of Mental Health and Hospitals. The other subclass is composed of voluntarily committed adult patients at the five facilities: Ancora Psychiatric Hospital, Marlboro Psychiatric Hospital, Trenton Psychiatric Hospital, Greystone Park Psychiatric Hospital, and the Glen Gardner Center for Geriatrics. *fn2"

 After extensive discovery, these two subclasses moved for a preliminary injunction to restrain the use of psychoactive drugs without the freely given consent of the patient and without procedural safeguards. The court held 17 days of hearings between June 13 and August 9, 1979. Transcripts (Tr.) XVII-XXXIII. The parties also supplemented the record with numerous depositions and exhibits.

 The court heard testimony of several patients and staff personnel from the various facilities and was provided extensive medical records. Both sides produced highly qualified experts in psychiatry, psychopharmacology and hospital administration. Numerous scholarly articles were submitted. Courtroom or deposition testimony was provided by each of the five medical directors, who are the chief psychiatrists at the hospitals and supervise medical practices. This testimony was supplemented by memoranda, records and statistical studies concerning the use of medication at the facilities. A Division attorney who has addressed these issues also testified at length.

 The following are the court's findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a).

 FINDINGS OF FACT

 I. Benefits and Side Effects of Psychotropic Medication

 The benefits and side effects of psychotropic drugs were discussed in Part IV of the findings of fact in the November opinion. 402 F. Supp. 1096 at 1136-38. Those findings are adopted and incorporated here. The court found that while psychotropic drug treatment had shown considerable success, recent studies had raised questions about the efficacy of using psychotropics in every case of mental illness. The present record provides additional evidence that many patients who would normally be treated with psychotropics can improve without them, and that smaller doses than are traditionally given can often be effective. Tr. XVII, 50-51; Tr. XXIV, 39; Tr. XXIX, 65; Crane, Clinical Psychopharmacology in Its 20th Year, 181 Science 124 (1973) (Exhibit P-46); Gardos & Cole, Maintenance Antipsychotic Therapy: Is the Cure Worse than the Disease ? 133 Am. J. Psychiatry 32 (1976) (Ex. P-46). The drugs are most useful in diffusing schizophrenic thought patterns during acute psychotic episodes. Tr. XVI, 106-09; Tr. XXVI, 36; Tr. XIX, 58-59; Tr. XXVII, 31-32.

 II. The Hospitals

 A. Patient Population and Staffing

 Ancora Psychiatric Hospital is a state facility for the mentally ill in Hammonton, New Jersey. It houses about 1000 patients at any one time. Tr. XXII, 37; Ex. P-42, p. 1. Marlboro Psychiatric Hospital is a state facility in Marlboro, New Jersey, with a patient population of approximately 800. Ex. P-42, p. 1. Greystone Park Psychiatric Hospital, in Morris Plains, New Jersey, has a population of 1100. Tr. XXXI, 90; Ex. P-42, p. 1. Trenton Psychiatric Hospital in Trenton has about 1000 patients. Ibid. The Glen Gardner Geriatric Center in Glen Gardner, New Jersey, has about 140 patients; all are of advanced age and have been transferred from Trenton Psychiatric Hospital.

 The four large hospitals have fairly similar populations. The majority of patients in each hospital are diagnosed schizophrenic; about 25 percent are categorized as having organic brain syndrome. About five percent are diagnosed as suffering major affective disorders, and another five percent are believed to be mentally retarded. Ex. P-42, pp. 35-42. The patients at Gardner are no longer in need of acute psychiatric care, but were formerly hospitalized for mental illness and often continue to receive psychotropic medication. Ex. J-6, pp. 3-5.

 The hospitals are understaffed and patients have trouble seeing psychiatrists. Tr. V, 61-63; Tr. XXII, 7, 136. They generally have large, bleak and unpleasant wards, and the patients have little structured activity. Tr. I, 46-47; Tr. XIV, 165-67; Tr. XXVI, 18-20.

 B. Use and Effect of Psychotropic Drugs

 A vast majority of patients at the five hospitals receive psychotropic medications, either by pills or injection. Tr. XXII, 54-55; Ex. D-23, p. 74; Ex. J-6, p. 36. One expert testified that drugs are the "be all and end all" at the hospitals. Tr. XXXI, 165. The medical director of Marlboro states in an office memorandum that the hospital "uses medication as a form of control and as a substitute for treatment." Ex. P-47, p. 15. A 1975 study of these institutions found overuse of drugs and inadequate record-keeping. Ex. P-47, pp. 84-86. The pattern of drug usage appears to be no different than that of other large state institutions, which was described in an article by Dr. George Crane, a psychiatrist who testified at the hearings:

 
Many physicians, nurses, guardians, and family members who resent the patient's behavior and are threatened by potential acts of violence fail to distinguish between manifestations of illness and reactions to frustrations. Hence, drugs are prescribed to solve all types of management problems, and failure to achieve the desired results causes an escalation of dosage, changes of drugs, and polypharmacy. It is often reported that patients refuse to ingest their pills or that relatives fail to supervise the proper administration of medicines. Less publicized is the patient's dependence on drugs. The medical staff gains a feeling of accomplishment from the patient's adherence to a prescribed regime, while the nursing personnel and relatives, who are in more direct contact with the patient, derive a spurious feeling of security when the doctor's orders are carried out. Thus, the prescribing of drugs has in many cases become a ritual in which patients, family members, and physicians participate. . . . Neuroleptics are often used for solving psychological, social, administrative, and other nonmedical problems.

 Crane, Supra, at 125.

 This extensive use of psychotropics has caused numerous patients not only transient side effects, Tr. XXII, 134, but permanent neurological damage including tardive dyskinesia *fn3" and drug-induced parkinsonism. The medical director of the Gardner Geriatric Center estimated that 35 to 50 percent of his patients all transferred from Trenton Hospital wards have tardive dyskinesia. Ex. J-6, pp. 3-4. The medical director of Ancora testified that the rate of tardive dyskinesia among his patients was probably between 25 to 40 percent, based on national studies, although he could not estimate from data generated at his own hospital. Ex. P-29, p. 3; Tr. XXII, 82. In fact, none of the medical directors had a clear idea of the extent of tardive dyskinesia among their patients. Tr. XXXII, 33; Ex. D-23, p. 28; Ex. J-6, p. 4; Ex. J-7, p. 46. Dr. Crane, a leading expert in the study of tardive dyskinesia, examined patients at two of the hospitals and found significant number of persons with tardive dyskinesia and other potentially permanent side effects which had not been diagnosed and charted in the patients' records. Tr. XVII, 25-38.

 Despite much criticism from outsiders, little was done by defendants to improve medication procedures until November 1978. At that time Commissioner Klein issued Administrative Order 2:13, Ex. D-21, and Dr. Rotov issued accompanying Administrative Bulletin 78-6, Ex. D-21. These documents provide specific guidelines to insure careful and knowledgeable administration of psychotropic drugs, and mandate that extrapyramidal symptoms be closely monitored. In particular, a check list for abnormal involuntary movement syndromes, or AIMS form, must be completed every three months. Ex. D-31. The court finds that these guidelines, modeled closely after a document used by the Michigan Department of Mental Health, Ex. P-47, pp. 48-52, are well intentioned and reflect a reasoned approach to the use of psychotropic medication.

 However, plaintiffs have demonstrated a widespread failure to have the guidelines implemented. For instance, while AIMS forms have been completed for most patients in the five facilities, Tr. XVII, 79; Tr. XXVI, 14; Tr. XXIX, 4, 28; Ex. J-6, pp. 6, 27, the doctors using the forms have often failed to diagnose tardive dyskinesia and drug-induced parkinsonism. Tr. XVII, 25-38; Tr. XXII, 145-46; Tr. XXXI, 64-65; Ex. P-71, pp. 3, 5; Ex. J-6, p. 44. It is not always clear whether nurses are completing the forms instead of physicians. Tr. XXXI, 62.

 Furthermore, the court believes that medication decisions are often left to nurses or even attendants because the doctors will ratify their recommendations without examining the patient involved. Tr. XXIII, 56-59. There is also overuse of medication orders which specifically leave discretion to the staff for many days, or weeks, despite hospital rules against such practice. Tr. XXIX, 98-100; Ex. D-23, pp. 42-43; Ex. P-48. Doctors also continue to use poor medication practices, such as unjustified polypharmacy. Tr. XXXI, 103-09; Ex. P-29, p. 61.

 The medical directors have begun to improve patient records, including pharmacy records, although there is still much to be done in this respect. Tr. XXII, 29, 73-80; Tr. XXIX, 18-25; Tr. XXXII, 70-73, 170-72; Ex. D-23, p. 40; Ex. J-7, p. 58. There has also been an attempt to better educate physicians in the use of psychotropics. Tr. XXIX, 28; Tr. XXX, 36-37; Ex. J-7, p. 58.

 III. Incidents Involving Individual Patients

 Before turning to the general procedures concerning refusal of medication, the court will discuss the representative experiences of five of the many individual patients whose cases were brought to the court's attention during the hearings as indicative of the practices and policies of defendants Klein and Rotov and their hospitals. Although the names of all but one patient appear in the record, their names, with the exception of Mr. Rennie's, will not be used in this opinion.

 The first patient is a 23 year old woman who was involuntarily committed to Ancora in 1978. She has had a history of mental illness and hospitalization since she was ten. Tr. XVIII, 82-85. At Ancora she was given psychotropic drugs which often blunted her consciousness to such an extent that she would spend much of the day sleeping. Id. at 86-87. Heavy doses were probably given in response to her quarrelsome and sometimes violent relationship with ward staff, which can, in large measure, be attributed to the fact that she felt unneeded and idle on the ward and was sometimes subject to physical assault from attendants. Id. at 90-101.

 Until January 1979 she usually took medication without objection, and, on occasion, even requested it. Id. at 87, 106-07. However, she was also threatened with forced injection of medication when she expressed reluctance to take drugs. Id. at 88. In January she began openly resisting drugs because she had become pregnant and "did not want to hurt my baby." Id. at 89. In disregard of her pregnancy and her opposition to drugs, the treating physician persisted in prescribing psychotropics, and the patient was forced to complain to the Public Advocate's office, which interceded. Id. at 89, 103-05. Nevertheless, with the approval of the hospital medical director, Tr. XXXIII, 71, she was given haldol, a psychotropic, on March 16, 1979. Ex. P-54. One week later she ingested a small amount of detergent and was transferred to the hospital's medical unit. Id. That unit immediately stopped her use of haldol because of her pregnancy and because her diagnosis did not require use of psychotropics. Ex. P-29, pp. 52-54. The medical unit also allowed her to do small chores on the ward. Her general condition rapidly improved and she became very cooperative with ward staff. Tr. VIII, 94-95. On May 16 she was discharged and has remained off medication. Id. at 88, 96; Ex. D-74. Her demeanor when she testified in court was excellent.

 In summary, despite the patient's hesitance and outright refusals, and her pregnancy, Ancora physicians on the psychiatric ward persisted in medicating this patient by force or intimidation when a change in environment was the least restrictive treatment indicated. A change was, in fact, quite beneficial. However, only the patient's drastic action insured the transfer she needed and an independent evaluation by another doctor.

 Another woman, 66 years old, was an involuntary patient at Greystone for 10 years. Plaintiff's expert diagnosed her illness as manic-depressive psychosis. Tr. XXXII, 58. The hospital had given her diagnoses of both manic-depressive psychosis and schizo-affective schizophrenia at different times. Id. at 59.

 Recently this patient began refusing doses of thorazine, although she accepted lithium which is the drug of choice for manic-depressive illness. Id. at 60. Her refusal was, according to plaintiffs' expert, "very good judgment." Id. at 93. The expert credibly characterized the thorazine prescription as "grossly irresponsible," due to the reasonable success of lithium alone, her symptomatology, and particularly because the patient has tardive dyskinesia. Id. at 67-68.

 In fact, a neurologist's report from 1975 in her medical record indicated she had a "classical" case of tardive dyskinesia, Id. at 79, but his report was apparently lost in her records. Id. at 62. A January 1979 note in her record indicated that her jaw movements were "faking," Id. at 65, although plaintiffs' expert testified that her movements were "so gross as to be unable to fake." Id. at 66. Indeed, because of her gross mouth movements from this disease she cannot be fitted with dentures and is forced to subsist on a diet of ground food. Ibid. She was also subjected to taunts from the hospital staff with the implication that the deformity was her own fault. Ibid.

 Here, again, a psychotropic drug was involuntarily administered where there was little medical justification for the drug and great danger of creating or enhancing irreversible side effects. The side effects were blatantly ignored by doctors.

 A third woman, a voluntary patient at Greystone, 60 years old, refused medication in August 1978 but was thrown onto a bed by attendants and given a long-acting form of prolixin by injection. The drug caused the patient severe discomfort. Tr. XVIII, 75-76; Tr. XXXII, 80-88. Plaintiffs' expert credibly testified that this was improper medication in this case and that the open ward privileges then given her were inconsistent with the suicidal diagnosis appearing in the patient's record. Tr. XXXII, 89-9-0. The expert believed many of her psychotic symptoms stemmed from her frustrations with hospital staff and delays in her discharge planning. Id. at 82-83.

 The hospital medical director was involved in the decision to forcibly medicate this patient, and upheld the treating physician's decision based on the physician's reports. Tr. XXXI, 49-51. Review by an independent hearing officer before the forced injection might have aired this patient's complaints and may have prevented the questionable use of prolixin.

 An intervenor in this action, age 29, was a voluntary patient at Ancora. Although the Public Advocate wrote a letter in March 1979 on the patient's behalf indicating the patient's dissatisfaction with his medication, long-acting prolixin, Tr. XX, 18; Ex. P-15, he continued to receive the medication. Tr. XVII, 114. At this time the hospital had him involuntarily committed, but did not follow Division procedures for involuntary patients who refuse medication. Ibid.

 After several letters from the Public Advocate, the hospital responded by continuing prolixin but refusing to give cogentin, a drug which the patient wanted because it is used to alleviate certain painful side-effects of prolixin. Tr. XX, 37-38. Finally, in June of 1979 the patient was given another form of psychotropic, which caused him substantially less discomfort, and he was able to leave the hospital a few weeks later. Tr. XVIII, 118, 128.

 Here, the intervention of the Public Advocate caused reprisals against the patient. The hospital failed to follow Division procedures for reviewing the refusals of involuntary patients, and subjected him to great suffering which could have been alleviated by simply changing from one psychotropic to another.

 Turning to Mr. Rennie, the original plaintiff in this action and an involuntary patient at Ancora, the court first notes the imprudent use of prolixin which caused plaintiff to experience severe side effects. During the hearings in this litigation in 1978, his condition and treatment were brought to light before the court and were subject to the evaluation of psychiatrists outside the hospital. Through this process, the hospital ...


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