Allmond v. Department of Health & Mental Hygiene

McDONALD, J. The State mental health law allows for the involuntary medication of an individual committed to a mental health facility if certain procedures are followed and if a clinical review panel — three health care professionals, none of whom is the treating psychiatrist — finds that certain statutory criteria are satisfied and authorizes the involuntary medication. Such an authorization remains valid for 90 days, after which a panel must review again the relevant criteria to authorize continued medication. The criteria for authorizing involuntary medication are set forth in Maryland Code, Health-General Article (“HG”), § 10-708(g). Among the circumstances in which the statute permits an individual to be medicated against the individual’s will are when: (1) the medication is prescribed by a psychiatrist for the purpose of treating the individual’s mental disorder; (2) the administration of the medication is a reasonable exer ⁵⁹⁶ cise of professional judgment; and (3) the individual is at substantial risk of continued hospitalization because the individual will remain seriously mentally ill with no relief, or for a significantly longer time, from the symptoms that resulted in the individual’s hospitalization.

Applying those criteria, a clinical review panel authorized the forced medication of Petitioner Gary Allmond, a resident of a facility operated by Respondent Department of Health And Mental Hygiene (“DHMH”). That decision was affirmed by an administrative law judge when Mr. Allmond invoked his appeal rights under the statute. Mr. Allmond has pursued judicial review in the courts. Before us, he contends that, on its face, HG § 10-708(g) violates the Maryland Declaration of Rights in permitting forced medication without a showing that he is dangerous to himself or others within the facility.

We hold that the statute is not unconstitutional on its face. However, we agree with Mr. Allmond that merely satisfying the challenged provisions of HG § 10-708(g) alone does not ensure compliance with the substantive due process requirement of the Declaration of Rights. The authorization for involuntary medication may only be constitutionally carried out when there exists an “overriding justification,” such as a need to render a pretrial detainee competent for trial. In any event, the authorization for involuntary medication in this case expired long ago.

As a consequence, a clinical review panel must apply the statutory criteria in a constitutional manner if DHMH seeks again to medicate Mr. Allmond against his will. I Background We describe first the involuntary medication statute that is at the heart of this case and then the facts and proceedings that bring this case to us. ⁵⁹⁷ A. Standards for Involuntary Medication In order to administer psychiatric medication to an individual confined in a mental health facility against the individual’s will, the facility must satisfy the standards and follow the process set out in HG § 10-708. First, the facility may administer medication against an individual’s will in an emergency pursuant to a physician’s order when the individual presents a danger to the life or safety of others in the facility. HG § 10 — 708(b)(1).

Second, and pertinent to this case, the facility may administer medication against an individual’s will when the individual is hospitalized involuntarily or committed for treatment pursuant to a court order 1 and a clinical review panel approves the use of the medication for the reasons allowed by the statute. HG § 10-708(b)(2). A clinical review panel is comprised of: (1) the clinical director of the psychiatric unit of the facility (if the clinical director is a physician) or a physician (if the clinical director is not), a psychiatrist, and a mental health professional other than a psychiatrist. HG § 10-708(e)(l).

If a member of the panel is directly responsible for treating the individual, anoth ⁵⁹⁸ er person is to be substituted for that particular review. HG § 10-708(c)(2). Among other things, the clinical review panel is to review the individual’s clinical record, assist the individual and the treating physician in arriving at a mutually agreeable treatment plan, ascertain the reasons why the individual is refusing medication, and review the potential consequences of medication. HG § 10-708(f).

If the statutory criteria are met, a panel may authorize involuntary medication for up to 90 days. HG § 10-708(m)(l). The statute provides directions for convening and conducting a meeting of a clinical review panel. HG § 10-708(e).

Among other things, the individual for whom medication has been recommended has the right to attend the meeting of the panel, to be assisted by a lay advisor, 2 to present information and witnesses, and to ask questions of others presenting information to the panel. However, the individual does not have a right to be present during the panel’s deliberations. HG § 10 — 708(e)(2)(i), (h)(2). The panel is to base its decision on its clinical assessment of the information contained in the individual’s record and the information presented to the panel.

HG § 10-708(h)(l). The individual has a right to an administrative appeal of the panel’s determination before an administrative law judge (“ALJ”) of the Office of Administrative Hearings. HG § 10-708(k). The decision of the ALJ is considered a final decision under the contested case provisions of the State Administrative Procedure Act 3 and judicial review of the ALJ’s decision may be pursued in a circuit court.

HG § 10 — 708(i). To approve the administration of medication against the individual’s will, a clinical review panel must make certain ⁵⁹⁹ determinations. The statute outlines those determinations as follows: (g) 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: (i)Remaining seriously mentally ill with no significant relief of the mental illness symptoms that: 1. Cause the individual to be a danger to the individual or others while in the hospital; 2.

Resulted in the individual being committed to a hospital under this title or Title 3 of the Criminal Procedure Article; or 3. Would cause the individual to be a danger to the individual or others if released from the hospital; (ii)Remaining seriously mentally ill for a significantly longer period of time with the mental illness symptoms that: 1. Cause the individual to be a danger to the individual or to others while in the hospital; 2. Resulted in the individual being committed to a hospital under this title or Title 3 of the Criminal Procedure Article; or 3.

Would cause the individual to be a danger to the individual or others if released from the hospital; or (iii)Relapsing into a condition in which the individual is unable to provide for the individual’s essential human needs of health or safety. HG § 10-708(g). As is evident, the first two conditions require that the treatment be medically appropriate — ie., that it was prescribed by a psychiatrist exercising reasonable profes ⁶⁰⁰ sional judgment to treat the individual’s mental disorder. Those conditions are not at issue in this case.

The third condition for involuntary medication — set forth in HG § 10-708(g)(3) — consists of three subparagraphs that parse into seven alternative criteria that may be satisfied to authorize involuntary medication of an individual. Two of those alternative criteria — HG § 10 — 708(g)(3)(i)(1) and HG § 10 — 708(g)(3)(ii)(l)—involve a finding that, without the medication, the individual’s mental disorder causes the individual to be a danger to self or others within the facility. The seventh alternative — HG § 10 — 708(g)(3)(iii)—would require a finding that, without the medication, the individual would relapse into a condition in which the individual is unable to provide for essential human needs. None of those three criteria are at issue in this case.

Mr. Allmond’s challenge is addressed to the constitutionality of the remaining four alternative criteria. In particular, at issue in this case is whether the criteria set forth in HG § 10-708(g)(3)(i)(2), (g)(3)(i)(3), (g)(3)(ii)(2), and (g)(S)(ii)(3), in conjunction with the other criteria in the statute, can be applied constitutionally. Because virtually all of the statutory provisions cited in the remainder of this opinion appear in either subparagraph (i) or subparagraph (ii) of HG § 10-708(g)(3), for readability we will refer to the provisions at issue by subparagraph designations and refrain from repeating the identical statutory prefix in each instance — e.g., HG § 10— 708(g)(3)(i)(2) will be referenced as “Subparagraph (i)(2).” B. Facts and Procedural History The circumstances of Mr. Allmond’s commitment and the procedural path of this case are undisputed and can be briefly summarized. Criminal Charges and Commitment Mr. Allmond has been diagnosed with schizophrenia since 1985, when he was in his mid-20s.

On September 1, 2011, police officers responded to a call concerning an assault in an apartment in Baltimore City. At the apartment, the officers ⁶⁰¹ found the body of a woman and Mr. Allmond, who told them that he was the caller, that he had had a dispute with his girlfriend, and that he had struck and strangled her. Mr. Allmond was charged with first-degree murder. On January 4, 2012, following an evaluation by DHMH, the Circuit Court for Baltimore City determined that Mr. Allmond was incompetent to stand trial and committed him to DHMH for psychiatric hospitalization and treatment at Clifton T. Perkins Hospital Center in Jessup (“Perkins”). 4 Such a determination does not necessarily mean that the individual is incapable of making decisions concerning the individual’s medical treatment — and no such determination was made in Mr. Allmond’s case. 5 Treatment at Perkins According to Mr. Allmond’s treating psychiatrist at Perkins, Mr. Allmond’s condition has caused him to experience paranoia, delusions, hallucinations, and disorganized thinking.

The ⁶⁰² medical personnel at Perkins have recommended various psychotropic medications to alleviate those symptoms, but Mr. Allmond has repeatedly refused those medications. Instead, Mr. Allmond prefers alternative forms of treatment, including psychotherapy and group therapy sessions. Nevertheless, his doctors believe that psychotropic medications are the only form of treatment that will alleviate his symptoms. According to his treating psychiatrist, despite the symptoms, Mr. All-mond has generally behaved well at Perkins, is well regarded by other patients on his ward, and has obtained the highest level of patient privileges at the hospital.

On September 3, 2014, during a medical treatment team meeting, Mr. Allmond’s treatment team at Perkins suggested to him that he receive psychotropic medication. In response to that suggestion, according to the treatment team’s account, Mr. Allmond became agitated and appeared to be about to assault one of the staff members. The treatment team then asked Mr. Allmond if he would like to take some sedative medications, whereupon Mr. Allmond became even more agitated. Security was eventually called to restrain Mr. Allmond.

According to his treating psychiatrist, Mr. Allmond then attempted to assault a staff member. Determinations of Clinical Review Panel In the wake of the September 2014 incident, Mr. Allmond’s psychiatrist requested that a clinical review panel be convened pursuant to HG § 10-708 to determine whether Mr. Allmond should be medicated against his will. On September 8, 2014, the panel approved the involuntary administration of medication for Mr. Allmond for a period of 90 days. 6 Mr. Allmond did not appeal that decision. In early December 2014, shortly before the 90-day period of authorized involuntary medication was due to expire, Mr. ⁶⁰³ Allmond’s psychiatrist requested that the clinical review panel reconvene to renew the authorization.

The psychiatrist asked the panel to reconvene because he was concerned that Mr. Allmond would stop taking the medication and that his symptoms would worsen. On December 4, 2014, the clinical review panel reconvened with Mr. Allmond present. The panel found that all six of the criteria under Subparagraph (i) and Subparagraph (ii) were met and authorized medication of Mr. Allmond against his will for another 90 days. In other words, the panel found that, without medication, there was a substantial risk that Mr. Allmond would require continued hospitalization because he would remain seriously mentally ill (1) with no significant relief of his symptoms and (2) for a significantly longer time with those symptoms.

In addition, the panel found, those symptoms had resulted in his original commitment and would cause him to be a danger to himself or others, whether in the hospital or released from it. 7 Hearing before ALJ Mr. Allmond requested an administrative hearing to appeal the panel’s decision. On December 18, 2014, an ALJ of the Office of Administrative Hearings conducted a hearing. At that hearing, various records related to the clinical review panel’s decision were introduced into evidence and Mr. All-mond’s treating psychiatrist testified. The psychiatrist stated that, in his opinion, antipsychotic medications were necessary to treat Mr. Allmond appropriately and that his symptoms would worsen without such treatment.

The psychiatrist conceded that, apart from the September 2014 incident, Mr. Allmond had been a “model patient” in terms of behavior. Mr. Allmond did not present any testimony or other evidence at the hearing. His counsel argued that DHMH had ⁶⁰⁴ failed to carry its burden of proof to establish that the statutory criteria for involuntary medication under HG § 10— 708(g) were satisfied. Counsel did not challenge the constitutionality of the statute.

The ALJ found that the first two of the three conditions under HG § 10-708(g) — those concerning medical appropriateness — were readily met: (1) the medications were prescribed by a psychiatrist for the purpose of treating Mr. Allmond’s mental disorder and (2) the administration of the medication was a reasonable exercise of professional judgment. With respect to the alternative criteria for satisfying the third condition set forth in the statute, the ALJ found that, without the medication, Mr. Allmond would remain seriously mentally ill with no relief of the symptoms that had resulted in his commitment to the hospital. However, contrary to the conclusions of the clinical review panel, the ALJ concluded that Mr. Allmond was not a danger to himself or to others either within or outside the facility. She found that the September confrontation with hospital staff was an isolated incident and that the homicide that resulted in his commitment to Perkins was remote in time.

Accordingly, the ALJ concluded that the criteria for involuntary medication were satisfied only under Subparagraphs (i)(2) and (h)(2), but not under Subparagraphs (i)(l), (i)(3), (h)(1), or (h)(3). Judicial Review Shortly after the ALJ’s decision, Mr. Allmond sought judicial review of that decision in the Circuit Court for Howard County. 8 In the petition, Mr. Allmond argued generally that the standards for involuntary medication set forth in HG § 10-708(g) are unconstitutional as violating both the Due Process Clause of the United States Constitution and Article 24 of the Maryland Declaration of Rights. On January 23, 2015, the Circuit Court held a hearing regarding Mr. All-mond’s petition. At that hearing, Mr. Allmond’s counsel ⁶⁰⁵ primarily advanced the constitutional argument for overturning the ALJ’s affirmance of the panel determination. 9 The Circuit Court rejected that argument.

Applying rational basis review, the Circuit Court concluded that HG § 10-708(g) did not unreasonably abridge Mr. Allmond’s constitutional rights and that the statute served a legitimate state interest. The Circuit Court issued an order that same day affirming the ALJ’s decision. Mr. Allmond then appealed the Circuit Court’s decision to the Court of Special Appeals. While his appeal was pending in the intermediate appellate court, he filed a petition for a writ of certiorari, requesting that we review the constitutionality of HG § 10-708(g).

On May 22, 2015, we granted certiorari to consider that issue. II Discussion In his petition for a writ of certiorari, Mr. Allmond raised the question whether HG § 10-708(g) is contrary to the Maryland Declaration of Rights. In particular, he argues that the statute is unconstitutional on its face because it violates his right to substantive due process under Article 24 and his right to free speech under Article 40. Although his petition for judicial review of the ALJ’s decision also invoked the United States Constitution and his argument before the Circuit Court discussed Supreme Court cases concerning the federal constitution, he now confines his arguments to the Maryland Declaration of Rights.

Preliminarily, however, we must decide whether, as DHMH argues, Mr. Allmond must return to the administrative forum to make his constitutional arguments there in order to exhaust his administrative remedies. ⁶⁰⁶ A. Exhaustion of Administrative Remedies Mr. Allmond did not make any constitutional arguments before the ALJ. DHMH argues that his failure to do so should result in this appeal — in which he has raised only constitutional issues before us — being dismissed because he failed to exhaust his administrative remedies. Ordinarily, a party must exhaust administrative remedies before resorting to the courts, even when the party raises constitutional issues. See Maryland Reclamation Associates, Inc. v. Harford County, 342 Md. 476, 493 , 677 A.2d 567 (1996); Maryland Reclamation Associates, Inc. v. Harford County, Maryland, 382 Md. 348, 366 , 855 A.2d 351 (2004).

However, in this case, Mr. Allmond did not go straight to court and circumvent the administrative process. Rather, he invoked the administrative appeal process provided by statute. It may be more precise to characterize his failing as a lack of preser vation — i.e., he followed the statute by beginning his appeal in the administrative forum, but failed to raise there the issues he now asks us to decide. It would be within our discretion to decline to decide the constitutional issue, as DHMH urges. “[Questions, including Constitutional issues that could have been but were not presented to the administrative agency may not ordinarily be raised for the first time in an action for judicial review.” Board of Physician Quality Assurance v. Levitsky, 353 Md. 188, 208 , 725 A.2d 1027 (1999) (emphasis added).

However, this Court has discretion to address unpreserved issues “if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal.” Maryland Rule 8-131(a). Ordinarily, we do not exercise this discretion, because it is best to allow a “proper record [to] be made with respect to the challenge” and “the other parties and the trial judge [to be] given an opportunity to consider and respond to the challenge.” Chaney v. State, 397 Md. 460, 468 , 918 A.2d 506 (2007). Deciding the facial constitutionality of Subparagraphs (i) and (ii) against a substantive due process challenge, though, is ⁶⁰⁷ one rare instance in which we will exercise our discretion to address an unpreserved issue, because none of the considerations recited above weighs against addressing the constitutional issue in this case. Mr. Allmond’s challenge is to a statute that requires further agency action every 90 days, so it is extremely likely that, if we decline to resolve this issue on procedural grounds, there will be another appeal raising the same issue in just a few months. 10 On the other hand, if we decide this issue now, we may avoid the expense and delay of another appeal or at least focus the issues in any future appeal.

Also, Mr. Allmond asserts that he is challenging the statute on its face and that no factual record needs to be made for a facial challenge. This is largely correct. An as-applied challenge depends on the challenger’s circumstances, but a facial challenge can be resolved without delving into the particular circumstances of the challenge. We need only ensure that there are sufficient facts to show that Mr. Allmond has standing to make this challenge.

It is certainly undisputed that Mr. Allmond has been the subject of several orders authorizing forced medication under HG § 10-708. 11 Finally, while the ALJ never had the opportunity to consider and respond to the constitutional challenge, the Circuit Court did, and the parties have adequately briefed the substantive due process issue before this Court, so there is no question of surprise or inadequate opportunity to consider and respond. The same cannot be said of Mr. Allmond’s challenge to HG § 10-708(g) as a violation of the constitutional free speech ⁶⁰⁸ guarantee. That challenge was raised for the first time in this Court and the parties have devoted scant attention to it in their briefs. Given our disposition of the substantive due process challenge, we think it unlikely that deciding the newly-raised issue will avoid the expense and delay of another appeal.

Under Maryland Rule 8- 131(a), therefore, we decline to exercise our discretion to consider the free speech challenge and limit our review to Mr. Allmond’s substantive due process challenge. B. Standard of Review In a case concerning the merits of a final administrative agency decision — such as that of the ALJ in this case — we review directly the administrative decision, not the decisions of the courts that previously reviewed the agency decision before it came to us. Comptroller v. Science Applications Int’l Corp., 405 Md. 185, 192 , 950 A.2d 766 (2008). In reviewing an agency’s fact findings, we apply a substantial evidence test, which is deferential to the agency’s determinations.

Gore Enterprise Holdings, Inc. v. Comptroller, 437 Md. 492, 504 , 87 A.3d 1263 (2014). As noted above, because Mr. Allmond asserts a facial challenge, the merits of the ALJ’s fact findings are not at issue in this appeal. With respect to the legal issues, the ALJ did not have the opportunity to consider the constitutional challenge and, although the Circuit Court did, it did not engage in any extended analysis. In any event, we generally review conclusions of law by an agency or lower court, including any concerning constitutional issues, without special deference.

Lawson v. Bowie State Univ., 421 Md. 245, 256 , 26 A.3d 866 (2011). C. Whether the Statutory Criteria Satisfy Article 24 (Substantive Due Process) 1. Relationship of federal and state substantive due process guarantees Mr. Allmond challenges certain provisions of HG § 10-708(g) on the basis that they violate Article 24 of the Maryland ⁶⁰⁹ Declaration of Rights, which provides “[t]hat no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land.” This is the Maryland counterpart of the Due Process Clauses found in the Fifth and Fourteenth Amendments to the United States Constitution. Unless there is good reason to do otherwise, “state constitutional provisions [such as Article 24] are in pari materia with their federal counterparts or are the equivalent of federal constitutional provisions or generally should be interpreted in the same manner as federal provisions.” Dua v. Comcast Cable of Maryland, Inc., 370 Md. 604, 621 , 805 A.2d 1061 (2002).

While this does not mean that a state constitutional provision will always be interpreted in the same way as its federal counterpart, cases concerning a federal constitutional provision are persuasive authority as to a Maryland counterpart. Id. Neither party in the case has presented any reason that our interpretation of the Article 24 of the Maryland Declaration of Rights should differ from interpretations of the analogous provisions of the federal constitution, and we perceive none, so we interpret Article 24 to provide the same protections in this case as do the Due Process Clauses of the United States Constitution. See Pitsenberger v. Pitsenberger, 287 Md. 20 , 410 A.2d 1052 (1980). 2.

Supreme Court precedent Mr. Allmond argues that forcibly medicating him deprives him of his substantive due process rights. “Substantive due process” — a somewhat opaque phrase that has been compared to “green pastel redness” for its seemingly oxymoronic quality 12 — refers to the principle that there are certain liberties protected by the due process clauses from legislative restrictions, regardless of the procedures provided, unless ⁶¹⁰ those restrictions are narrowly tailored to satisfy an important government interest. See Reno v. Flores, 507 U.S. 292, 302 , 113 S.Ct. 1439 , 123 L.Ed.2d 1 (1993). One such liberty is “avoiding the unwanted administration of antipsychotic drugs.” 13 Washington v. Harper, 494 U.S. 210, 221 , 110 S.Ct. 1028 , 108 L.Ed.2d 178 (1990); Williams v. Wilzack, 319 Md. 485, 508 , 573 A.2d 809 (1990). Although this Court has never considered the contours of that liberty interest, the Supreme Court has done so in three decisions rendered during the past quarter century.

Washington v. Harper, supra; Riggins v. Nevada, 504 U.S. 127 , 112 S.Ct. 1810 , 118 L.Ed.2d 479 (1992); Sell v. United States, 539 U.S. 166 , 123 S.Ct. 2174 , 156 L.Ed.2d 197 (2003). Washington v. Harper: Involuntary medication of convicted prisoner who is dangerous to self or others is permissible when medically appropriate and reasonably related to legitimate penological interests. In Washington v. Harper, the Supreme Court held that the State of Washington could forcibly medicate a prisoner who suffered from a mental disorder such that he posed a likelihood of serious harm to himself, others, or property, provided such medication was medically appropriate. 494 U.S. at 225 , 110 S.Ct. 1028 . The Supreme Court stated that “the