The court having considered the testimony, exhibits, briefs and argument of counsel; and
For the reasons stated in the court's opinion filed this day,
It is on this 14th day of September, 1979, hereby ORDERED of defendants Klein and Rotov:
A. Beginning January 7, 1980, defendants shall establish for the adult units of the Ancora Psychiatric Hospital, Greystone Park Psychiatric Hospital, Marlboro Psychiatric Hospital, Trenton Psychiatric Hospital, and Glen Gardner Geriatric Center:
1. Consent forms. A system of consent forms to be signed by patients before they are prescribed psychotropic drugs by hospital physicians in non-emergent situations. Such consent forms shall state in plain language the right of voluntary patients to refuse treatment and the qualified right of involuntary patients to refuse and to have their refusals reviewed within the hospital, and by the independent psychiatrist as described in this order. The forms shall also state the availability of Patient Advocates to assist patients who wish to refuse treatment. Each form shall also state all known short-term and long-term side effects of the drug to be consented to, and may be supplemented by informal discussion by hospital staff with the patient concerning the risks and benefits of the drugs. A single form may be used to obtain the consent for up to three different medications, to be used concurrently or alternatively. Information on the rights of patients and the side effects of all psychotropic drugs used in a hospital shall be posted or made available on each ward.
2. Patient Advocate. The Office of the Commissioner of the Department of Human Services shall hire, pay, train and supervise an adequate number of Patient Advocates in each hospital. The Patient Advocates' duties shall include those described in this order. The Patient Advocates must be supervised by an attorney and psychiatrist in the Office of the Commissioner. The Advocates may be trained attorneys, psychologists, social workers, registered nurses or paralegals, or have any equivalent experience. They must be given training in the effects of psychotropic medication and the principles of legal advocacy.
3. Independent Psychiatrist. The Office of the Commissioner shall hire and pay psychiatrists to review the decisions to forcibly medicate involuntary patients.
B. Beginning January 7, 1980, no voluntary or involuntary patient age 18 years or older in the five hospitals may be given any drug commonly labelled "psychotropic" by the medical profession unless the patient has signed a consent form pertaining to the specific drug. The written consent shall apply indefinitely subject to the other conditions of this order. No voluntary or involuntary patient may be given psychotropic medication if he states to a doctor or nurse that he does not want the specific drug. An injection of psychotropic medication may not be based on a prior written consent if the patient orally refuses at the time of the injection. Patient Advocates may consult with any patient and assist him in refusing medication orally. An Advocate can also require that the hospital obtain renewed written consent if a patient who has previously given written consent has since orally refused. The medical director, and treating physician or other member of the hospital staff may encourage a patient to consent to and take medication; however, force or the threat of force may not be used unless forced medication is allowed for a patient under the terms of this order.
C. Medication may be given orally or by injection without written consent and despite oral refusals in the following circumstances:
1. Emergency Situation. Where the treating psychiatrist certifies in a voluntary or involuntary patient's record that there is an emergency situation. An emergency is a sudden, significant change in the patient's condition which creates danger to the patient himself or to others in the hospital. Medication may then be forcibly administered for 72 hours. Certification by the medical director of the hospital may extend that period for 72 more hours if the threat to life or limb continues. Any person who is temporarily committed to a mental hospital or other institution pursuant to the procedures provided by the temporary commitment provisions of the New Jersey statutes
may be involuntarily medicated Only if his condition constitutes an emergency situation as defined above, and any person who is involuntarily held in a mental hospital or institution but who has not been permanently or temporarily committed in accordance with the procedures mandated by the applicable New Jersey statutes may not be medicated against his will under Any circumstances.
2. Legally incompetent patient. An involuntary patient declared legally incompetent may be medicated without written consent if proper consent is obtained in accordance with state law. However, decisions to medicate legally incompetent patients must also be referred to a Patient Advocate who may at any time assess the patient's feelings about the drug, side effects, failure to consistently take the medication and the use of force or threat of force by hospital staff to administer the drug. The Patient Advocate may then, in his discretion, initiate review under Administrative Bulletin 78-3, or similar hospital procedures succeeding that Bulletin, and may, in his discretion, seek review to the Independent Psychiatrist. The patient's guardian must be notified. Medication shall be permitted during the time period for review, which shall not exceed 15 days. A Patient Advocate shall review the treatment regime of each incompetent patient at least once every three months.
3. Functionally incompetent. A treating physician may certify in an involuntary patient's record that the patient is "functionally incompetent" because he is unable to provide knowledgeable consent to treatment, although he has not been declared incompetent by a court of law. These cases must also be referred to the Patient Advocate who shall review the case and initiate review in the manner described above for legally incompetent patients.
D. Except as provided in Paragraph C(1) of this order, no voluntary patient may be medicated who does not sign a consent form or who orally refuses.
E. Except as provided in Paragraphs C(1) through (3) of this order, where an involuntary patient refuses to provide consent after all in-hospital procedures are exhausted, or where an involuntary patient refuses intermittently and the hospital seeks to give medication on a continuous basis, the hospital may seek permission to involuntarily medicate by bringing the patient before the Independent Psychiatrist, in accordance with the following guidelines (the same guidelines shall apply to hearings brought by a Patient Advocate under Paragraphs C(2) and (3) of this order):
1. Notice. The patient must have at least five days between the first refusal to a staff nurse or physician and presentation to the Independent Psychiatrist.
2. Advocate. The patient shall be allowed to have an attorney and Independent Psychiatrist present at this hearing. However, the state need only supply a Patient Advocate if the patient cannot or does not wish to have his own private counsel. The Patient Advocates at each hospital shall be notified of all refusals reaching the Medical Director under Bulletin 78-3 so that an Advocate can prepare any cases appealed to the Independent Psychiatrist.
3. Hearing. The Independent Psychiatrist may hold an informal proceeding. All hospital records should be made available to the Independent Psychiatrist, and he may conduct a medical examination of the patient where necessary. No compulsory access to witnesses or cross-examination need be permitted, although the Independent Psychiatrist may request hospital employees to appear if he deems this necessary.
4. Opinion. The Independent Psychiatrist shall issue a written determination in each case, basing any decision to override the patient's privacy right on the four factors outlined in the court's November opinion. He may also consider whether the use of the drugs in a particular case violates the principles of the first and eighth amendments as discussed in the November opinion. 462 F. Supp. at 1143-44. He may "settle" the dispute by obtaining consent to treatment from the patient, or he may remand the case to the hospital medical director or treating physician for reformulation of a treatment plan in accordance with specific directives. He may prohibit use of psychotropic drugs altogether if required by the patient's preferences and his qualified right.
5. Effective Period. The Independent Psychiatrist may state a time period for which his decision allowing the hospital to forcibly medicate remains effective. This period should not exceed 60 days, and should preclude a patient from seeking review by the Independent Psychiatrist during that time. However, review may be had if the patient contends the hospital has failed to adhere to the Independent Psychiatrist's decision concerning proper treatment. The hospital may seek a rehearing in any case at any time.
F. In order to assist the court's consideration of the relief at the final hearing on the issues presented, defendants are ordered to submit monthly reports describing in reasonable detail their implementation of Administrative Order 2:13, Administrative Bulletins 78-3 and 78-6, and any other subsequent mandates on administration of psychotropic drugs, as well as their implementation of this order. The first report, covering the month of September 1979, shall be submitted on or before October 15, 1979, and each report shall be due by the 15th of the month thereafter during the period before a final order is entered.
G. Where this order specifically refers to voluntary patients, the order grants relief for that subclass, and where it specifically refers to involuntary patients it grants relief for that subclass. Where neither category is referenced, then relief is granted for both subclasses.
No preliminary injunction shall issue against defendants Pepernik, Wallis, Balita, Santos, Ivanov and Abraham.
No costs are awarded.