Beeman v. Department of Health & Mental Hygiene

HOLLANDER, Judge. In this appeal, we consider the extent to which a patient, involuntarily committed to a State psychiatric facility, can be forced to take neuroleptic 1 and side-effect medications pursuant to Md.Code Ann., Health-Gen. Art. (“HG”) § 10-708 (1993). Appellant Arlene Beeman, who was involuntarily committed to the Thomas B. Finan Center (the “Finan Center”) for treatment of schizo-affeetive disorder, refused to take certain drugs prescribed by Dr. E. Michael Ehlers, her psychiatrist.

The Finan Center’s Clinical Review Panel (“CRP”), convened pursuant to HG § 10-708, authorized Dr. Ehlers to administer a series of drugs, alone or in combination, at a wide range of doses. After holding a de novo hearing, an Administrative Law Judge (“ALJ”) at the Office of Administrative Hearings (“OAH”) agreed with the CRP’s decision. Thereafter, the Circuit Court for Allegany County affirmed the ALJ’s decision. On appeal to this Court, Beeman has raised four issues: 1.

Whether the Administrative Law Judge and the circuit court erred in approving forced administration of Cogentin and other side effect medications to involuntary patients even though they are not medications prescribed for treatment of a mental disorder as defined by Section 10-708? 2. Whether the Panel’s authorization of the involuntary administration of psychiatric medication up to the maximum allowable therapeutic dosage and in various combi ¹⁵¹ nations in nonspecific doses violates the statutory requirement that “the decision shall specify: (1) the medication or medications approved and the dosage and frequency range”? 3. Whether the circuit court improperly ruled that the administrative hearing record contained substantial evidence to support the findings in light of the court’s admission that the ALJ hearing audiotape was inaudible and that the court had to rely instead on counsel’s representations of what had occurred? 4. Whether the failure of the circuit court to hear the case within the statutorily mandated timeframe constitutes reversible error?

Appellee, the Department of Health and Mental Hygiene (“DHMH”), contends that all of these issues are moot. We agree with DHMH that, based on the posture of this case, all issues are moot. Nonetheless, issues 1 and 2 are worthy of consideration despite their mootness; we conclude that the authorization of forced medication, including medication prescribed for “side-effects,” did not violate the requirements of HG § 10-708. On the other hand, the CRP lacked authority to approve any medications or dosage ranges that were not requested by the treating psychiatrist.

On the ground of mootness, we decline to consider the procedural questions raised in issues 3 and 4. Factual Background The evidence in the thin record in this case essentially consists of a transcript of the audiotapes of the hearing before the ALJ. Unfortunately, the tapes were of such poor quality that the testimony is largely unintelligible. Nevertheless, for the purposes of this appeal, the facts are largely undisputed.

Accordingly, we have gleaned the summary that follows from the decisions of the ALJ and the circuit court, along with the few usable portions of the transcript, and as amplified by the uncontested portions of the parties’ briefs. ¹⁵² Appellant, who is sixty-two years old, has long been diagnosed as having schizo-affective disorder. More than once, she has been committed involuntarily to the Finan Center for this illness. Although she does respond to medication, the symptoms of her condition have been difficult to manage. The dispute that gives rise to this appeal began after Beeman was committed on July 14, 1993.

In early January 1994, Dr. Ehlers prescribed three oral medications: Haldol at 10 milligrams twice per day, Anafranil at 50 milligrams per day, and Depakote at 500 milligrams twice per day. When Beeman refused to take any of these medications, Dr. Ehlers requested authorization to administer the drugs forcibly. Following a hearing on January 6, 1994, at which Beeman and a lay adviser were present, the Finan Center’s CRP authorized the following treatment for 90 days: Haloperidol (Haldol) PO at a total daily dose not to exceed 100 mg. If the PO dose is refused, Haloperidol Lactate at a total daily dose not to exceed % of the current PO dose may be given.

In the event that the patient refused the PO doses and requires IM injections for two times in a given week, the Panel approves Haloperidol Decanoate at a dosage equivalent not to exceed 250 mg IM q 4 weeks. The dosage is to be titrated by the Attending Physician based on the clinical symptoms. The Panel also approves the use of Depakote at a total daily dose not to exceed 3000 mg. The dosage will be titrated by the Attending Physician based on the clinical symptoms.

In the event that the patient experiences any extrapyramidal symptoms, the Panel approves Anti-dyskinetic medications with the Attending Physician titrating them based on the clinical symptoms. Benztropine (Cogentin) not to exceed 6 mg/day PO or IM, Trihexyphenidyl (Artane) not to exceed 8 mg/day PO or IM, Amantadine (Symmetrel) PO not to exceed 200 mg/day, or Diphenhydramine (Benadryl) not to exceed 150 mg/day PO or IM. If [the] patient develops akathisia, Propranolol at a total daily dosage not to exceed 240 mg, may be given if needed. If the patient does not respond to Haldol, the Attending Physician may use other neuroleptics not to exceed the ¹⁵³ following daily doses: Chlorpromazine (Thorazine) 200 mg; Mesoridazine (Serentil) 500 mg; Thiothixene (Navane) 80 mg; Perphenazine (Trilafon) 64 mg; Trifluoperazine (Stelazine) 80 mg; Fluphenazine (Prolixin) 80 mg; Loxapine (Loxitane) 250 mg; Molindone (Moban) 250 mg; or Fluphenazine Decanoate (Prolixin) 750 mg q 2 weeks.

(Emphasis added). Beeman received a copy of the decision on January 11,1994. Some forty minutes later, she filed a petition for administrative review through her counsel. 2 On January 24,1994, following a de novo hearing, the ALJ affirmed the CRP’s authorization of treatment, appending and annexing the CRP’s instructions to his own decision, without modification. No one asked the ALJ to stay its order.

Accordingly, two days later, forced treatment began. On January 27, 1994, Beeman filed a petition for review by the circuit court, but incorrectly captioned her petition. Thereafter, on February 2, 1994, Beeman filed an amended petition for review, this time with the correct caption. In her petitions for review, appellant requested a stay of the ALJ’s decision; her request, however, apparently was never addressed by the circuit court.

On February 17, 1994, DHMH filed a Motion for Reversal, based on procedural grounds. Evidently, no request was made to transcribe the audiotapes from the OAH hearing, and no one attempted to listen to the five and a half hours of audiotapes prior to the hearing before the circuit court. The circuit court ultimately heard the case on March 18, 1994. According to the docket entries in the record, the OAH audiotapes were transmitted to the circuit court on that day.

After listening to the audiotapes, the court described them as “generally poor quality and in substantial part inaudible due to static and background noise,” and “of essentially mini ¹⁵⁴ mal help.” The court therefore decided to place “supplemental reliance ... upon the notes and recall of counsel, as provided at oral argument.” On the merits of Beeman’s appeal, the court found “substantial evidence” to support the ALJ’s decision, but did not identify that evidence specifically. The ALJ’s order authorizing forced treatment expired after ninety days. According to DHMH, Beeman responded well to the treatment; she was released from the Finan Center on August 18, 1994, and has been receiving treatment on an outpatient basis. Discussion I. Scope of Review The scope of review on appeal to this Court is essentially the same as the circuit court’s scope of review.

We must review the administrative decision itself. Pub. Svce. Comm’n v. Baltimore Gas & Elec.

Co., 273 Md. 357, 362 , 329 A.2d 691 (1974); State Election Bd. v. Billhimer, 72 Md.App. 578, 586 , 531 A.2d 1298 (1987), rev’d on other grounds, 314 Md. 46 , 548 A.2d 819 (1988); see also Dep’t Econ. & Emp’t Dev’t v. Hager, 96 Md.App. 362 , 625 A.2d 342 (1993). Decisions of the OAH are subject to review under the Administrative Procedure Act (“APA”), Md.Code Ann., State Gov. Art. (“SG”) § 10-222 (Supp.1994). Subsection (h) provides that the reviewing court may— (1) remand the case for further proceedings; (2) affirm the final decision; or (3) reverse or modify the decision if any substantial right of the petitioner may have been prejudiced because a finding, conclusion, or decision: i. is unconstitutional; ii. exceeds the statutory authority or jurisdiction of the final decision maker; iii. results from an unlawful procedure; iv. is affected by any other error of law; ¹⁵⁵ v. is unsupported by competent, material, and substantial evidence in light of the entire record as submitted; or vi. is arbitrary or capricious.

See also, Md. State Police v. Lindsey, 318 Md. 325, 332-34 , 568 A.2d 29 (1990); State Election Bd. v. Billhimer, 314 Md. 46 , 548 A.2d 819 (1988); Warner v. Town of Ocean City, 81 Md.App. 176 , 567 A.2d 160 (1989); Harford Mem’l Hosp. v. Health Svces. Cost Rev. Comm’n, 44 Md.App. 489 , 410 A.2d 22 (1980). Where the question on appeal is the sufficiency of the evidence to support a decision, we must determine “whether a reasoning mind could have reached the factual conclusion reached by the agency.” Supervisor of Assessments of Montgomery Co. v. Asbury Methodist Home, Inc., 313 Md. 614, 625 , 547 A.2d 190 (1988). In making this determination, we may not substitute our judgment for that of the agency.

Id. at 626 , 547 A.2d 190 . When the issues concern interpretation of federal and Maryland statutes, however, we afford the agency no such deference. State Dep’t of Assessments & Taxation v. Loyola Fed. Sav. & Loan Ass’n, 79 Md.App. 481, 498-90 , 558 A.2d 428 (1989); Comptroller of the Treasury v. Ramsay, Scarlett & Co., 58 Md.App. 327, 340-41 , 473 A.2d 469 (1984).

II

Statutory Background The resolution of the issues in this case depends, at least in part, on the language of HG § 10-708. 3 Beeman contests only the application of § 10-708, not its constitutionality. See Williams v. Wilzack, 319 Md. 485 , 573 A.2d 809 (1990) (in light of Washington v. Harper, 494 U.S. 210 , 110 S.Ct. 1028 , 108 L.Ed.2d 178 (1990), prior statutory version deprived patient subject to involuntary medication of significant procedural due process rights). Accordingly, before turning to the issues presented, we must review the contours of this section. ¹⁵⁶ Under subsection (b), medication may not be forced upon a nonconsenting patient except in two situations—an emergency, or a non-emergency in which “the individual is hospitalized involuntarily ... and the medication is approved by a panel under the provisions of this section.” As no emergency was present here, medication could only be forced upon Beeman if approved by a CRP as provided in HG § 10-708. Where a panel convenes a hearing to consider forcing treatment, the panel must provide 24-hour notice of the hearing to the patient.

HG § 10-708(d). At the hearing, the patient has the right to attend, present information and witnesses, cross-examine witnesses presented by others, consult with a lay advisor, and to be provided with an explanation of “the clinical need for the medication or medications, including potential side effects, and material risks and benefits of taking ■or refusing the medication.” HG § 10-708(e). After the hearing, the panel may authorize administration of the medications prescribed by the physician, as well as alternative medications, only 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.... HG § 10-708(g) (emphasis added).

If the panel approves the forced medication, the patient has 24 hours to appeal the panel’s decision .to the OAH. If appealed, the panel’s decision is automatically stayed pending resolution by the OAH. HG § 10-708(k). The OAH then must hold a de novo hearing within 7 days, and the decision of the ALJ is deemed the final agency decision for the purposes of judicial review in the circuit court.

Id. Under HG § 10-708(£), either the individual or the facility, represented by DHMH, may appeal the ALJ’s decision to the circuit court within 14 days of the ALJ’s decision, pursuant to ¹⁵⁷ SG § 10-201. Under SG § 10-222(e)(2), either the OAH or the circuit court may stay the decision of the OAH pending resolution in the circuit court. Thereafter, the circuit court “shall hear and issue a decision on an appeal within 7 calendar days from, the date the appeal was filed.” HG § 10-708(0(4) (emphasis added).

Nevertheless, nothing in HG § 10-708 expressly authorizes the imposition of sanctions for a violation of any of these provisions.

III

Mootness DHMH contends, based on the fact that the ALJ’s order has already expired, that Beeman’s issues are moot and so we should not reach them. Although we agree that all issues are moot, we believe Beeman’s substantive issues are sufficiently important so that we shall elect to reach them, notwithstanding their mootness. We explain. Whether the CEP properly approved Beeman’s forced medication is clearly moot because the ALJ’s order expired ninety days after issuance.

Even if we were to agree with Beeman’s contentions, we cannot undo the fact that the medication has already been administered. Nor has there been a declaration or permanent adjudication of rights, binding upon anyone at any future hearings, that we could reverse. Accordingly, even if we were to agree with her propositions of law, there is no remedy available to her. As a general proposition, courts of appeal “do not sit to give opinions on abstract propositions or moot questions; appeals which present nothing else for decision are dismissed as a matter of course.” In re Riddlemoser, 317 Md. 496, 502 , 564 A.2d 812 (1989).

A question is moot if, at the time it is before the court, there is no longer an existing controversy between the parties, so that there is no longer any effective remedy which the court can provide. Att’y Gen. v. Anne Arundel Co. Sch. Bus Contractors Ass’n, 286 Md. 324, 327 , 407 A.2d 749 (1979). See also In re Riddlemoser, 317 Md. at 502 , 564 A.2d 812 ; Droney v. Dro ¹⁵⁸ ney, 102 Md.App. 672, 681 , 651 A.2d 415 (1995).

Nevertheless, on rare occasions, we reach issues that are otherwise moot. Id. at 502-03, 564 A.2d 812 . In Lloyd v. Bd. of Supervisors of Elections, 206 Md. 36 , 111 A.2d 379 (1954), the Court articulated the standard by which moot cases must be measured: [OJnly where the urgency of establishing a rule of future conduct in matters of important public concern is imperative and manifest, will there be justified a departure from the general rule and practice of not deciding academic questions ---- [I]f the public interest clearly will be hurt if the question is not immediately decided, if the matter involved is likely to recur frequently, and its recurrence will involve a relationship between the government and its citizens, or a duty of government, and upon any recurrence, the same difficulty which prevented the appeal at hand from being heard in time is likely again to prevent a decision, then the Court may find justification for deciding the issues raised by a question which has become moot, particularly if all of these factors concur with sufficient weight. Id. at 43 , 111 A.2d 379 .

Our application of the Lloyd standard to the instant case leads us to conclude that our review is appropriate. Without doubt, the forced administration of medication clearly concerns “a relationship between the government and its citizens.” We are also satisfied that it is a matter of important public concern to ensure that forced medication of hospitalized patients is conducted in a manner that is neither arbitrary nor capricious. See Williams v. Wilzack, 319 Md. at 509-10 , 573 A.2d 809 (patients’ interest against arbitrary and capricious forced administration of medication is protected by constitutional due process rights). Moreover, neither party has referred us to a plethora of cases on the issues here; to the contrary, our research reflects a paucity of authority on this important and developing topic.

In addition, the issue is one that is likely to recur. The parties do not dispute that Beeman’s disorder is generally resistant to treatment, and that the severity of her symptoms ¹⁵⁹ depends upon the regularity with which she takes her medication. According to DHMH, Beeman is presently taking medication voluntarily on an out-patient basis, and the need for further forced treatment is speculative. But if Beeman fails to take her medication regularly, as she asserts has happened before, the disorder may resurface and she may need further involuntary treatment.

Finally, if this issue were to recur, it may again evade judicial review. We note that no one requested the ALJ to stay its decision, although the ALJ had the authority to do so. SG § 10—222(e)(2). Similarly, the circuit court could have stayed the forced administration of medication.

See Md. Rule 7-205 (stay of ALJ’s order); Md. Rules 2-632(a, e), 8-422 (stay of circuit court’s order). But Beeman had no absolute right to a stay, and it is possible that neither the court nor the ALJ would grant one. Indeed, this point is underscored by