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Rennie v. Klein

July 9, 1981; As Amended July 20, 1981.

JOHN E. RENNIE, PLAINTIFF ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, 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 OTHER SIMILARLY SITUATED, APPELLANTS/CROSS-APPELLEES,
v.
ANN KLEIN, COMMISSIONER, DEPARTMENT OF HUMAN SERVICES; MICHAIL ROTOV, M.D., DIRECTOR OF THE DIVISION OF MENTAL HEALTH AND HOSPITALS; MAX PEPERNIK, 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, APPELLEES/CROSS-APPELLANTS.



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Civil No. 77-2624)

Argued April 22, 1980 before Aldisert, Weis and Garth, Circuit Judges. Reargued In Banc May 12, 1981 before Seitz, Chief Judge, and Aldisert, Adams, Gibbons, Hunter, Weis, Garth, Higginbotham and Sloviter, Circuit Judges.

Author: Weis

Opinion OF THE COURT

This appeal requires us to define the legal rights of the mentally ill with respect to the care and treatment supplied by the state. We hold that mental patients who are committed involuntarily to state institutions nevertheless retain a constitutional right to refuse antipsychotic drugs that may have permanently disabling side effects. The state may override that right when the patient is a danger to himself or others, but in non-emergency situations must first provide procedural due process. We further determine that the informal administrative procedures established by New Jersey meet constitutional standards, and accordingly, modify a district court injunction that required a formal adversary hearing and other measures before a patient's refusal can be overriden.

John Rennie has been a patient at the Ancora Psychiatric Hospital, a state institution in New Jersey, on numerous occasions since 1973. In several instances, powerful antipsychotic drugs have been administered to him against his will. He brought suit in the district court alleging several violations of his constitutional rights and later amended the complaint to assert a class action. The district court defined a qualified constitutional right to refuse treatment and issued a preliminary injunction directing New Jersey to establish an independent review mechanism that went beyond procedures already prescribed by the state.

Rennie is a forty year old divorced man, a former pilot and flight instructor. In 1971 he first showed symptoms of mental illness, which became more serious in 1973 when his twin brother was killed. Shortly thereafter, Rennie was admitted for the first time to Ancora, one of five hospitals for the mentally ill operated by the state of New Jersey. He was depressed and suicidal and was diagnosed as a paranoid schizophrenic. At various times during his stays, Rennie refused to accept prescribed drugs despite the hospital staff's insistence that it has a right to medicate him against his will. During his twelfth admission to Ancora, which began in August 1976 after an involuntary commitment proceeding, Rennie instituted the suit that is the subject of this appeal.

Rennie's complaint charged the defendants with violating a number of his constitutional rights.*fn1 By agreement of the parties, the litigation has focused exclusively on motions for preliminary injunctions with respect to the right to refuse treatment, leaving other issues for future determination.

After evidentiary hearings and other proceedings lasting almost a year, the district court issued its first opinion, which recognized a qualified constitutional right to refuse treatment. Rennie v. Klein, 462 F. Supp. 1131, 1144-45 (D.N.J.1978). The court held that four factors determine whether treatment may be refused: (1) the physical danger posed by the patient to other patients and the staff at the institution; (2) the patient's mental capacity to decide on his course of treatment; (3) the availability of less restrictive treatments; and (4) the risk of permanent side effects from the medication. See id. at 1145-46.

Finding that its hearings satisfied procedural due process insofar as Rennie was concerned, the court, nevertheless, felt it "appropriate to comment on ... the shortcomings of the state's new Bulletin 78-3 regarding psychotropic medication."*fn2 Id. at 1142. The state's failures to provide for an attorney and independent psychiatrists to assist the patient in asserting his right to refuse treatment were particularly faulted. Id. at 1147.

Rennie later moved to amend his complaint to include class action allegations.*fn3 The district court granted this motion and conditionally certified three subclasses. The first consists of persons who are or may be hospitalized at Ancora and asserts violations of the right to adequate treatment and safe confinement. The claims of this group have not yet been determined.

The second subclass consists of all adult patients involuntarily committed to any of the five state mental health facilities Ancora Psychiatric Hospital, Marlboro Psychiatric Hospital, Trenton Psychiatric Hospital, Greystone Park Psychiatric Hospital, and the Glen Gardner Center for Geriatrics. The third subclass is composed of all adult patients voluntarily committed to these five institutions.*fn4

Further proceedings focused on the motions by the latter two subclasses for a preliminary injunction to enforce a right to refuse treatment. Seventeen days of additional hearings were held and an opinion was issued on September 14, 1979. Rennie v. Klein, 476 F. Supp. 1294 (D.N.J.1979). The district court reaffirmed its earlier conclusion that involuntarily committed patients have a substantive constitutional right to refuse medication and extended this right to voluntarily committed patients. The opinion concentrated, however, not on the substantive aspects of the right to refuse treatment, but on its procedural features.

The court ruled that the procedures promulgated in Administrative Bulletin 78-3 were insufficient to protect the substantive constitutional right it had recognized. In the district court's opinion, review of the attending psychiatrist's recommendation by the medical director was inadequate because institutional pressures would prevent him from exercising independent judgment. Additionally, the failure to provide procedures for obtaining informed consent, including a written form signed by the patients, was cited. 476 F. Supp. at 1309-10.

The court issued a preliminary injunction that requires the state hospitals to hold hearings to determine whether patients may be medicated against their will. The state must also provide a "patient advocate" to represent patients at hearings, and must retain independent psychiatrists to make the ultimate determination at those hearings. In addition, consent forms are mandated and provisions for administering drugs in an emergency are outlined. The staffs are also directed to file monthly reports on implementation of the decree. 476 F. Supp. at 1313-15.

The parties cross-appeal from the district court's order.*fn5 The defendants contend that the district court erred in recognizing a constitutional right to refuse treatment. In the alternative, they argue that the procedures embodied in Administrative Bulletin 78-3 are sufficient to protect any such right.

The plaintiffs assert that the relief ordered by the district court is inadequate. They contend that independent psychiatrists retained by and responsible to the Commissioner of the Department of Human Services cannot be the neutral decisionmakers required by the due process clause. Similarly, an attack is leveled against the effectiveness of the system of patient advocates who, likewise, would be retained by and responsible to the defendant Commissioner. Finally, plaintiffs challenge the portion of the court's order that permits a doctor to medicate the patient by declaring him to be "functionally incompetent," a procedure they say can allow the circumvention of the mandatory review of all refusals of medication.

I.

We first consider the appropriate scope of review. Generally, in an appeal from the grant of a preliminary injunction we are limited to determining whether there has been an abuse of discretion, an error of law, or a clear mistake in the consideration of the proof. Oburn v. Shapp, 521 F.2d 142, 147 (3d Cir. 1975). This narrow standard of review springs from the realization that the proof at a hearing for a preliminary injunction is abbreviated and that the trial court, under time pressures, may not have the opportunity for the more mature consideration of issues that is expected in usual adjudications. See United States Steel Corp. v. Fraternal Association of Steelhaulers, 431 F.2d 1046, 1048 (3d Cir. 1970).

Our review takes into account the factors that the district court considers in ruling on an application for a preliminary injunction. The moving party

"must demonstrate that irreparable injury will occur if relief is not granted to maintain the status quo until a final adjudication on the merits can be made and that there is a reasonable probability of eventual success on the merits. In addition, the court must weigh the possibility of harm to the nonmoving party as well as any other interested person and, when relevant, harm to the public."

The Continental Group, Inc. v. Amoco Chemicals Corp., 614 F.2d 351, 356-57 (3d Cir. 1980), citing Delaware River Port Authority v. Transamerican Trailer Transport, Inc., 501 F.2d 917, 919-20 (3d Cir. 1974) (footnotes omitted). Here, the court did not expressly weigh the possibility of harm to defendants in implementing the extensive procedural mandate or to the public interest, which is clearly implicated here as well. See e. g., Delaware River Port Authority v. Transamerican Trailer Transport, Inc., 501 F.2d 917, 923-24 (3d Cir. 1974).

When it is apparent that all the pertinent evidence will be presented in support of the motion for a preliminary injunction, Fed.R.Civ.P. 65(a)(2) permits the court to consolidate the hearings. Before the trial on the class action, plaintiffs' attorney had suggested a consolidation, and during the taking of testimony counsel and the court discussed this alternative on several occasions. Defense counsel approved the concept but stated he lacked the authority to consent. In the absence of clear agreement between the litigants, the court declined to consolidate.

The hearings, however, were as extensive as would be expected in the case of a permanent, rather than a preliminary, injunction. In addition, the trial court prepared a comprehensive opinion that demonstrated complete familiarity with the issues and applicable law gained after several hearings in Rennie's individual case. As is apparent, the court's injunction, although labeled as preliminary, is a sweeping and detailed order that imposes substantial, continuing obligations on the state. The decree is not simply a passive prohibition but requires positive action and substantial expenditures by the state to carry out its provisions. The order will have a significant effect on the state budget and on the care and treatment of the institutionalized patients. In these circumstances, it is particularly appropriate to give substantial consideration to the public interest. When these factors are combined with the extensive fact finding and legal research embodied in the district court's opinions, its order requires a more searching review than is customarily provided for preliminary injunctions.

II.

There are essentially two questions presented on this appeal. First, whether compulsory medication of involuntarily committed mental patients violates a liberty interest protected by the fourteenth amendment. Second, if such an interest exists, what procedures must the state follow to protect it.*fn6

We first address the liberty interest issue, which may be divided into three inquiries: (A) does state law create a liberty interest that is infringed by compulsory medication of involuntarily committed patients; (B) if not by state law, does the Constitution itself create such a liberty interest; (C) if it does, what are the substantive contours of the right to refuse treatment. We consider these matters in turn.

A.

The defendants deny the existence of a liberty interest and refer to a line of Supreme Court cases suggesting that a liberty interest protected by the due process clause must have its origin in "some right or justifiable expectation rooted in state law." Montanye v. Haymes, 427 U.S. 236, 242, 96 S. Ct. 2543, 2547, 49 L. Ed. 2d 466 (1976). See also Vitek v. Jones, 445 U.S. 480, 488, 100 S. Ct. 1254, 1261, 63 L. Ed. 2d 552 (1980); Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979); Meachum v. Fano, 427 U.S. 215, 96 S. Ct. 2532, 49 L. Ed. 2d 451 (1976); Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974); Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). They argue that New Jersey law does not create a right or justifiable expectation, but to the contrary, affirmatively withholds any such right.

In their characterization of New Jersey's statutory law, the defendants are probably correct, for N.J.Stat.Ann. § 30:4-24.2(d)(1) (West 1981), provides in part that "voluntarily committed patients shall have the right to refuse medication." In context, the implication of the statute is that involuntarily committed patients do not have this right and a New Jersey trial court has so held. In re B., 156 N.J.Super. 231, 383 A.2d 760 (1977). Research has not disclosed any New Jersey appellate opinions interpreting the statute, nor has the Supreme Court of that state had occasion to determine the application of the New Jersey constitution or the common law in this situation.*fn7

State statutes or practices may give rise to a liberty interest that would not otherwise exist. Thus, the Supreme Court has held that although states are not constitutionally mandated to provide parole, Greenholtz v. Nebraska Penal Inmates, 442 U.S. at 7, 99 S. Ct. at 2103; Morrissey v. Brewer, supra, or probation, Gagnon v. Scarpelli, 411 U.S. at 782, 93 S. Ct. at 1759, or good time credits, Wolff v. McDonnell, 418 U.S. at 556-57, 94 S. Ct. at 2974-75, once legislation does provide a right to these benefits, a liberty interest arises that is protected by the due process clause. By contrast, the court has held that where state statutes do not confer on an inmate the right to be incarcerated in any particular prison, but rather give prison administrators unfettered discretion to transfer inmates among different institutions, a prisoner has no liberty interest in remaining at a given location, even if a transfer is to a much more restrictive environment. Meachum v. Fano, 427 U.S. at 228-29, 96 S. Ct. at 2540; Montanye v. Haymes, 427 U.S. at 242-43, 96 S. Ct. at 2547.

A determination that a state statute itself does not create a liberty interest, however, is not the end of the inquiry. A liberty interest may flow directly from the United States Constitution itself, despite silence or contrary indication in state law. Were it otherwise, a state's statutory law would occupy a position higher than the Constitution. Thus, it is not correct to say that a liberty interest can only originate in state law. A more accurate statement is that state law can give rise to a liberty interest that would not otherwise exist.

In Vitek v. Jones, the Supreme Court considered whether a Nebraska prisoner had a liberty interest in not being involuntarily transferred from a prison to a state mental institution. The Court examined state law with respect to inmate transfers to mental hospitals and concluded that a liberty interest was implicated since the Nebraska statute provided for transfer only when "a prisoner "suffers from a mental disease or defect' and "cannot be given proper treatment in that facility.' " 445 U.S. at 483, 100 S. Ct. at 1258, quoting Nebraska Rev.Stat. § 83-180(1) (1976). In the next, and, for our purposes, critical part of its analysis, the Court held that a liberty interest would be implicated even without statutory limitations on such transfers. Id. at 491-94, 100 S. Ct. at 1262-1264. The Court accordingly held that the prisoner's transfer to a mental institution must comply with requirements of procedural due process. Id. at 494, 100 S. Ct. at 1264.

It is evident, therefore, that liberty interests may spring from the Constitution itself and can be recognized without regard to state law. Consequently, we reject the defendants' argument that because none is created by state law, plaintiffs have no liberty interest, and next consider whether one was created by the Constitution.

B.

An individual who has not been committed to a mental institution has a right to refuse medication sought to be administered against his will. The state cannot ignore due process and simply seize a person and administer drugs to him without his consent. The case before us is one step removed, since it involves the right of an individual to refuse treatment after he has been confined to a mental institution. Such a commitment requires a proceeding in conformity with procedural due process which, under New Jersey law, requires the state to prove that "the institutionalization of the patients is required by reason of his being a danger to himself or others or property if he is not so confined." N.J. Civil Practice Rule 4:74-7(f).

An involuntary civil commitment in itself entails "a massive curtailment of liberty." Humphrey v. Cady, 405 U.S. 504, 509, 92 S. Ct. 1048, 1052, 31 L. Ed. 2d 394 (1972). We must determine, then, whether, as the state argues, the freedom to refuse medication normally possessed by an individual is extinguished by involuntary civil commitment, or whether the patient "retain(s) a residuum of liberty that would be infringed" by compulsory medication "without complying with minimum requirements of due process." Vitek v. Jones, 445 U.S. at 491, 100 S. Ct. at 1262.

We are not persuaded by the state's argument that involuntary commitment takes away all aspects of a person's liberty interest. In our view, the patient's liberty is diminished only to the extent necessary to allow for confinement by the state so as to prevent him from being a danger to himself or to others.

The Supreme Court has held that solitary confinement "represents a major change in the conditions of confinement" in a prison setting, Wolff v. McDonnell, 418 U.S. at 571-72 n.19, 94 S. Ct. at 2982 n.19, and that revocation of parole, with a consequent return to prison, represents a loss to the parolee, Morrissey v. Brewer, 408 U.S. at 482, 92 S. Ct. at 2600. A fortiori, compulsory medication of a nonconsenting patient with its serious concomitant risks must be deemed a "major change in the conditions of confinement."

The extent to which the plaintiffs' liberty interest is invaded by compulsory medication appears dramatically from the record here. All the antipsychotic drugs induce a variety of disorders of the central nervous system as side effects.*fn8 Most serious among these is tardive dyskinesia, a potentially permanent disorder. 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. at 1138. More common, but less serious than tardive dyskinesia, are akinesia and akathesia. The former can induce a state of diminished spontaneity, physical weakness and muscle fatigue. The latter is "a subjective state and refers to an inability to be still; a motor restlessness which may produce a shaking of the hands or arms or feet or an irresistable desire to keep walking or tapping the feet." Id. Both of these disorders usually disappear either during or shortly after the course of medication. They can sometimes be controlled by anticholinergic or antiparkinsonian medications.

A variety of minor physical effects also attend the use of antipsychotics, which "include blurred vision, dry mouth and throat, constipation or diarrhea, palpitations, skin rashes, low blood pressure, faintness and fatigue.... These side effects tend to diminish after a few weeks." Id. (citations omitted). In rare cases the antipsychotic drugs have caused death.*fn9

The impact of these side effects was highlighted by the testimony of several patients at the institutions. An older woman described involuntary jaw movements as a result of tardive dyskinesia so severe that she could not be fitted with dentures. As a result she is restricted to a diet of ground food. One young woman told of feeling sedated by the antipsychotic drugs to the point where she would sleep most of the day. Others testified to severe discomfort in response to the drugs. 476 F. Supp. at 1301-02.

The record convinces us that there is a difference of constitutional significance between simple involuntary confinement to a mental institution and commitment combined with enforced administration of antipsychotic drugs. It implicates the "right to be free from, and to obtain judicial relief for, unjustified intrusions on personal security." Ingraham v. Wright, 430 U.S. 651, 673, 97 S. Ct. 1401, 1413, 51 L. Ed. 2d 711 (1977). This intrusion rises to the level of a liberty interest warranting the protection of the due process clause of the fourteenth amendment.

In support of a substantive constitutional right to refuse medication, the plaintiffs also point to the first and eighth amendments. They contend that compulsory medication deprives them of freedom of thought protected by the first amendment and constitutes cruel and unusual punishment proscribed by the eighth amendment. See Scott v. Plante, 532 F.2d 939, 945-47 (3d Cir. 1976). The district court rejected these alternative bases, relying instead on the right to privacy protected by the due process clause of the fourteenth amendment. 462 F. Supp. at 1143-44. We believe it is preferable to look to the right of personal security recognized in Ingraham v. Wright, supra.

We find the eighth amendment a particularly inappropriate reference point. That provision is directed to preventing excesses in the punishment of those who have been convicted of crime. Failure to provide adequate medical care is a violation of that amendment only if the deprivation is the result of "deliberate indifference" to the serious medical needs of prisoners. Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976). See also Hampton v. Holmesburg Prison Officials, 546 F.2d 1077 (3d Cir. 1976). It is necessary to distinguish the status of prisoners who are legitimately being punished for commission of a crime from that of persons who are mentally ill or retarded through no fault of their own and are innocent of any offenses against society. These people are victims who are entitled to society's assistance and understanding. They do not merit retribution. It is a throwback to a more callous attitude of the past to equate the mentally ill or retarded person's constitutional right of personal integrity to that of criminals. We reject the eighth amendment, therefore, as the proper minimal standard for the treatment of the plaintiff classes.*fn10 They are entitled to more humane consideration.

C.

Having concluded that the patient has a constitutional right to be free from treatment that poses substantial risks to his well-being, we must consider the scope of that right. Like most rights, it is not absolute, but is limited by other legitimate governmental concerns and obligations. The administration of drugs generally is a recognized adjunct to the treatment of the mentally ill and indeed may be required by the state as a concomitant of its power to commit involuntarily.*fn11

Under the New Jersey statutes, a person who is mentally ill may not be committed against his will unless he is a danger to himself, others, or property. State v. Krol, 68 N.J. 236, 344 A.2d 289 (1975). He may not constitutionally be confined involuntarily if he is "dangerous to no one and can live safely in freedom." O'Connor v. Donaldson, 422 U.S. 563, 575, 95 S. Ct. 2486, 2493, 45 L. Ed. 2d 396 (1975). Whether a state may involuntarily commit a person solely because he may need treatment is a question the Supreme Court has not addressed, id. at 573-74, 95 S. Ct. at 2492-93, and one which has evoked serious reservations by the Chief Justice. Id. at 589, 95 S. Ct. at 2500 (Burger, C.J., concurring). That issue, however, is not presented here.

The power to confine involuntarily has been justified under either the state police power or the parens patriae theory. Coll v. Hyland, 411 F. Supp. 905 (D.N.J.1976) (three-judge court). The two often overlap. The powers of the state that justify deprivation of a mentally ill person's freedom from confinement are the same sources of authority for administering drugs without the patient's consent. It is obvious, however, that the state's power is not without limits. A person who is committed because of mental illness may neither be detained after that condition ceases, O'Connor v. Donaldson, nor confined more restrictively than necessary. See Romeo v. Youngberg, 644 F.2d 147, 160-61, 166 (3fd Cir. 1980), cert. granted, 451 U.S. 982, 101 S. Ct. 2313, 68 L. Ed. 2d 838 (1981). Thus, without justification, the state could not shackle a mentally ill patient in a damp, unheated, inordinately small cell, when his condition is such that he could freely move about the institution.

The deprivation of liberty imposed by the state must not exceed that required by needed care or legitimate administrative concerns. What is at issue here is the administration of drugs psychotropics with the very real possibility of damaging results accompanying their use so that "the cure (c)ould be worse than the illness." Rennie v. Klein, 462 F. Supp. at 1146. To protect the liberty interest in the face of such a threat, the least intrusive infringement is required. Even a convicted prisoner retains a "residuum of liberty" that may not be infringed without due process protections. Vitek v. Jones, 445 U.S. at 491, 100 S. Ct. at 1262. And, as the Court has said, "due process requires that the nature and duration of commitment bears some reasonable relations to the purpose for which the individual is committed." Jackson v. Indiana, 406 U.S. 715, 738, 92 S. Ct. 1845, 1858, 32 L. Ed. 2d 435 (1972).

Much the same reasoning applies to the involuntary administration of antipsychotic drugs. The record demonstrates that these drugs can be valuable in the treatment of certain mental illnesses, relieving symptoms on a short term basis as well as for lengthy periods. Their use often makes it possible to shorten the period of confinement drastically and also makes patients more manageable and, hence, less a threat to others. Thus, both the police power and the parens patriae interests are served.

Just as the power to confine is accepted, but its nature limited, so may involuntary administration of drugs be justified only when accompanied by appropriate restrictions. The involuntarily committed patient retains a "residuum of liberty," and he correspondingly retains the right to be free from "unjustified intrusions on (his) personal security." Ingraham v. Wright, 430 U.S. at 673, 97 S. Ct. at 1413. That concept has sometimes been paired with the "least intrusive means" when objections to forced administration of drugs are raised. See e. g., Rogers v. Okin, 634 F.2d 650 (1st Cir. 1980), cert. granted 451 U.S. 906, 101 S. Ct. 1972, 68 L. Ed. 2d 293 (1981).

Even though a person may be mentally ill, and has been properly committed involuntarily, he nonetheless is considered competent to some extent.*fn12 His constitutional rights to be free from confinement and personal intrusion are necessarily limited by commitment, but they are not totally extinguished. The Constitution is at least as viable behind the walls of a psychiatric hospital as in a prison. See Vitek v. Jones, 445 U.S. at 491-92, 100 S. Ct. at 1262-63; Wolff v. McDonnell, 418 U.S. at 555-56, 94 S. Ct. at 2974.

In another context, the Supreme Court said, " "even when pursuing a legitimate interest, a State may not choose means that unnecessarily restrict constitutionally protected liberty,' Kusper v. Pontikes, 414 U.S. 51, 58-59, 94 S. Ct. 303, 308, 38 L. Ed. 2d 260 (1973), and we have required that States adopt the least drastic means to achieve their ends." Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173, 185, 99 S. Ct. 983, 991, 59 L. Ed. 2d 230 (1979) (citations omitted). That view is consistent with the earlier case of Shelton v. Tucker, 364 U.S. 479, 81 S. Ct. 247, 5 L. Ed. 2d 231 (1960):

"In a series of decisions this Court has held that, even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgement must be viewed in the light of less drastic means for achieving the same basic purpose."

Id. at 488, 81 S. Ct. at 252 (footnotes omitted).

The means chosen to promote the state's substantial concerns must be carefully tailored to effectuate those objectives with minimal infringement of protected interests. See Griswold v. Connecticut, 381 U.S. 479, 485, 85 S. Ct. 1678, 1682, 14 L. Ed. 2d 510 (1965). Although in those cases the Court wrote in the setting of legislation affecting voting and first amendment rights, it has applied the same rationale in other circumstances as well. The same philosophy applies in cases implicating a person's "right to be free from ... unjustified intrusions on personal security," Ingraham v. Wright, 430 U.S. at 673, 97 S. Ct. at 1413, especially where, as here, physical and intellectual integrity is threatened by an unduly narrow construction of constitutional rights.*fn13 It appears that at least thirty-five jurisdictions explicitly or implicitly acknowledge the least restrictive doctrine in their statutes as applicable to treatment or involuntary commitment.*fn14

It is true that much turns upon the medical and psychiatric facts of each case. That the constitutional standard is closely intertwined with questions of medical judgment, however, cannot defeat the patient's rights, nor require abdication of legal protection. That was made clear in Vitek v. Jones, 445 U.S. at 495-96, 100 S. Ct. at 1264-65, where the Court, recognizing that judges are not trained to make medical diagnoses, nevertheless found that "(t)he medical nature of the inquiry ... does not justify dispensing with due process requirements." See also, Parham v. J.R., 442 U.S. 584, 607, 99 S. Ct. 2493, 2506, 61 L. Ed. 2d 101 (1979). Consistent with this is In re K.K.B., Okl. 609 P.2d 747 (1980), where the court discussed the right to refuse antipsychotic drugs, saying, "in a society ruled by laws, social actions that infringe or control individual freedoms must be judged by legal standards." Id. at 751. "Liberty includes the freedom to decide about one's own health. This principle need not give way to medical judgment." Id. at 749.

The least intrusive means standard does not prohibit all intrusions. It merely directs attention to and requires avoidance of those which are unnecessary or whose cost benefit ratios, weighed from the patient's standpoint, are unacceptable. There must be a careful balancing of the patient's interest with those to be furthered by administering the psychotropic drug.

This is not to say that the least intrusive means requires hourly or daily judicial oversight. Obviously that would be an unworkable standard. Rather, what is reviewable is whether the choice of a course of treatment strikes a proper balance between efficacy and intrusiveness. In its search for the correct answer, a court naturally will depend upon medical and psychiatric opinion, just as it does in deciding upon the competency of a defendant to stand trial, the necessity for involuntary commitment, and other similar medical or psychiatric issues.*fn15 No doubt, some cases will present sharply conflicting professional viewpoints. That, however, is not a valid reason for refusing to make the inquiry.

In any event, promulgation of the standard merely serves to advise the psychiatric community that a conscious weighing of the constitutional liberty interest in any determination of proper treatment alternatives is necessary. It will not unduly hamper the standard of professional care to determine whether a different drug, or smaller dosages, or a different therapy would serve the interest of the patient as well as the state.

It must be observed that emergency conditions, for example, may require that more discretion be granted the attending physician. In the case of antipsychotic drugs, it would appear that treatment for a limited period is not as likely to have as intrusive an effect upon the patient as administration for an extended time. This, moreover emphasizes that the least intrusive standard is generally applicable to a regimen or treatment program rather than individual dosages. We emphasize that the emergency treatment provisions are not at issue in this case.

III.

Having concluded that a constitutional right to refuse treatment exists, it is necessary to consider whether the due process safeguards imposed by the district court were proper.*fn16

Initially, we recognize that the decision to administer drugs depends upon a medical judgment based upon a variety of facts, such as the need for the drugs and their probable effects on the patient, including the possibility of side effects. Matters such as the likelihood of violence on the part of the patient; his previous reaction to acute psychotropic drugs, if any; the duration of previous drug therapy; the prognosis for improvement or stability; alternative medications; close confinement or other alternatives; and other factors too numerous to mention here, all enter into the decisionmaking. The nature of these elements makes it plain that the determination must be made on an individual basis. Due process procedures must therefore provide an opportunity for the exercise of professional judgment in these circumstances.

From a legal standpoint, the outline of due process protections that must guide state agency proceedings are summarized in Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). The Court listed three factors for consideration: (1) the private interest; (2) the risk of an erroneous decision through the procedures used as well as the value of the any of additional or substituted safeguards; and (3) the governmental interest, including fiscal and administrative burdens that other procedural requirements would impose. Id. at 335, 96 S. Ct. at 903. These guidelines permit flexibility to adjust to a variety of circumstances, such as the employment of professional judgment, and do not mandate adherence to rigid, traditionally adversary proceedings. Against this background, we turn to the administrative provisions adopted by the State.

New Jersey has enacted legislation regulating treatment for the mentally ill. It includes provisions that provide for the right to "medical care and other professional services in accordance with accepted standards ... (and) the right to participate in planning for his own treatment to the extent that his condition permits." N.J.Stat.Ann. § 30:4-24.1 (West 1981). It has also enacted a mental patient "Bill of Rights," which guarantees the right "(t)o be free from unnecessary or excessive medication," the right not to have medication "used as a punishment, for the convenience of staff, (or) as a substitute for a treatment program," and the right to have adequate records of medication maintained. Id. at 4-24.2(d)(1). Administrative Bulletin 78-3, issued soon after this litigation began, incorporates many of the provisions found in the statute and, while not conceding the right of involuntarily committed patients to refuse drugs, also defines the need for compulsory medication. For those not adjudicated incompetent, medication may be imposed involuntarily in some limited, nonemergency situations. If, without it, the patient is incapable of participating in any treatment plan that will give him a realistic opportunity to improve his condition, or if it will shorten the required commitment time, or if there is a significant possibility that the patient will harm himself or others before his condition improves, drugs may be administered. P II(2)(a) & (b).

Procedurally, the Bulletin sets up a mechanism through which a decision to administer drugs against a patient's will shall be made and reviewed. At the first level, when a patient refuses to accept medication, the treating physician must explain to the patient the nature of his condition, the rationale for using the particular drug, and the risks or benefits of it as well as those of alternative treatments. If the patient still declines, the matter is discussed at a meeting of the patient's treatment team, which is composed of the treating physician and other hospital personnel, such as psychologists, social workers, and nurses who have regular contact with the patient. The patient is to be present at this meeting if his condition permits. P II(B).

If, after the team meeting, the impasse remains, the medical director of the hospital or his designee must personally examine the patient and review the record. In the event the director agrees with the physician's assessment of the need for involuntary treatment, medication may then be administered. P II(D). The medical director is also authorized, but not required, to retain an independent psychiatrist to evaluate the patient's need for medication. P II(E)(1). Finally, the director is required to make a weekly review of the treatment program of each patient who is being drugged against his will to determine whether the compulsory treatment is still necessary. P II(E)(2). In addition, the district court found that the Division of Mental Health and Hospitals had adopted a ...


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