Beeman v. Department of Health & Mental Hygiene

HARRELL, Judge. Appellant, Arlena Beeman, appeals from a judgment of the Circuit Court for Allegany County (Sharer, J.) that affirmed the order of an administrative law judge dismissing her appeal from the decision by a clinical review panel to administer certain antipsychotic medications to her forcibly. In this appeal, we consider whether § 10-708(k) of the Health-General Article of the Annotated Code of Maryland comports with the requirements for due process contained in the Fourteenth Amendment of the United States Constitution and Article 24 of the Maryland Declaration of Rights. The statutory provision, on its face, imposes a forty-eight hour window in which to appeal to an administrative law judge decisions made by clinical review panels to forcibly medicate psychiatric patients. ¹²⁸ The statute does not expressly take into account the patient’s mental capacity to understand and exercise that right of appeal.

Because we believe that the existing procedural protections contained in the statute as a whole, in light of the presumption of competency and the availability of alternative guardianship proceedings, adequately protect the patient’s constitutional liberty interests, we shall affirm. ISSUES PRESENTED Appellant presents two issues for our consideration, which we have slightly re-phrased for analysis as follows: I. Does the failure by the Department of Health and Mental Hygiene to assess and account for an involuntarily committed psychiatric patient’s mental capacity to understand and exercise her right to an administrative appeal from a decision by a clinical review panel to forcibly medicate her violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution or Article 24 of the Maryland Declaration of Rights?

II

Does the failure by the Department of Health and Mental Hygiene to assess and account for an involuntarily committed psychiatric patient’s mental capacity to understand and exercise her right to an administrative appeal from a decision by a clinical review panel to forcibly medicate her violate the anti-discrimination prohibitions and reasonable accommodation obligations of the Americans with Disabilities Act and/or Section 504 of the Vocational Rehabilitation Act of 1973? FACTS AND PROCEEDINGS BELOW On 23 July 1993, appellant was involuntarily retained at the Thomas B. Finan Center (“Finan Center”), a psychiatric institution operated by the Maryland State Department of Health ¹²⁹ and Mental Hygiene (“DHMH”) in Cumberland, Maryland. 1 Appellant soon thereafter refused to take medication (Lithium and Thiothixene) that was prescribed for her by Dana Calder-one, M.D., her attending physician, to treat appellant’s mental problem, diagnosed as “schizoaffective disorder.” 2 On 27 July 1993, appellant received notice that a clinical review panel (“panel”) would be convened on the following day to determine whether medication would be administered to her despite her refusal to take it willingly. 3 After appellant received notice ¹³⁰ that the panel would be assembling, but before the scheduled meeting, appellant consulted with her rights advisor, 4 Ms. Delores Ortiz, who provided her with information and assistance regarding the upcoming meeting with the panel. The panel convened as scheduled on 28 July 1993, with appellant and her rights advisor, among others, present. The panel approved the use of forced medication to treat appellant’s mental disorder for a period not to exceed ninety days, and documented its decision as required by HG § 10-708(i). 5 Appellant received written notice of the panel’s decision on Friday, 30 July 1993 at approximately 9:30 a.m.

That same Friday, after receiving notice of the panel’s decision, appellant met twice with Ms. Ortiz, who advised appellant of her statutory right to appeal the decision of the panel to an administrative law judge (“ALJ”) of the Office of Administrative Hearings (“OAH”) 6 and left with appellant the partially completed appeal form. All that remained to be done to the form in order to perfect an appeal was for appellant to affix her signature to it, write in the date and time, and deliver the form to any Finan Center staff person. Ms. Ortiz also left additional copies of the appeal form in appellant’s chart and in ¹³¹ the charting room. Moreover, Ms. Ortiz notified staff at the Finan Center, and particularly those assigned to appellant’s cottage, that appellant may want to appeal the panel’s decision over the upcoming weekend.

Although appellant had previously appealed at least one prior panel decision requiring her to submit to forced medication, and often initiated contact with an attorney at the Legal Aid Bureau office in Cumberland, she did not express ostensibly to anyone a desire that she wanted to appeal the panel’s decision in this case on 30 July, 31 July, or on 1 August 1993. The forty-eight hour deadline for taking an administrative appeal, provided by HG § 10-708(k)(l), supra, n. 6, expired on 1 August 1993 at approximately 9:30 a.m. Thereafter, on 2 August 1993, after another meeting with her rights advisor, in which appellant made no outward expression of a desire to appeal, medication was administered to appellant, pursuant to the panel’s decision, at approximately 10:00 a.m. Later on 2 August 1993, at approximately 3:50 p.m., roughly thirty hours past the statutory deadline, appellant tendered a hand written letter to Finan Center staff, indicating that she wanted to appeal the panel’s decision.

Appellee, DHMH, filed with the OAH a motion to dismiss appellant’s appeal on the ground that it was not timely filed. The assigned ALJ held an evidentiary hearing on the motion to dismiss at the Finan Center on 13 August 1993. At that hearing, appellant was represented by an attorney from the Legal Aid Bureau who was familiar with her background and current predicament. On 22 October 1993, the ALJ issued her written decision and order dismissing appellant’s appeal, finding generally that (1) appellant was properly advised of her appeal rights and otherwise had the assistance required by law of her rights advisor; (2) appellant had timely filed an appeal on at least one prior occasion, but did not do so in the present case; and (3) that she was “not persuaded that [§ 10-708 was] unconstitutional nor [was she] persuaded that the statute was applied [to appellant] in an unconstitutional man ¹³² ner.” 7 Appellant timely sought judicial review of the decision of the ALJ by the Circuit Court for Allegany County on 4 November 1993, pursuant to HG § 10-708(0(1).

Appellant persuaded the circuit court, over appellee’s objection, not to employ the statutorily provided expedited appeal proceedings under HG § 10-708(Z )(4), which would have required a decision by the circuit court within seven days, but rather to proceed under the more relaxed time provisions of Maryland Rule 7-201, et seq. This decision enabled appellant to prosecute Beeman I on the faster track before having to move forward on the instant appeal. Oral argument was held on the instant appeal on 8 July 1994. The court took the matter under advisement following the hearing.

While the matter was pending sub curia, on 18 August 1994, after having received the full course of treatment approved by the panel, appellant was discharged from the Finan Center. On 8 December 1994, the circuit court issued its written opinion and order affirming the decision of the ALJ. Appellee has moved to dismiss the instant appeal as moot. Additional facts will be supplied as necessary in our discussion of the issues we address.

DISCUSSION MOOTNESS Appellee contends that the issues raised by appellant in this appeal are moot because the clinical review panel’s decision approving the forced medication of appellant, on which this appeal is based, expired approximately on 28 October 1993, and any reversal of the ALJ’s dismissal of appel ¹³³ lant’s appeal and remand for a hearing on the merits would be meaningless. Thus, appellee asserts that the instant appeal should be dismissed. 8 As the Court of Appeals explained in Attorney Gen. v. Anne Arundel Cty. Sch. Bus, 286 Md. 324, 327 , 407 A.2d 749 (1979): 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.

Furthermore, “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.’ ” Beeman I, supra, 105 Md.App. at 157, 658 A.2d 1172 (quoting In re Riddlemoser, 317 Md. 496, 502 , 564 A.2d 812 (1989)). We agree with appellee that the question of whether appellant’s appeal to the OAH should have been dismissed is moot because, no matter how we would resolve the question, it would be impossible for us to provide an effective legal remedy for appellant when she has already been medicated pursuant to the 28 July 1993 panel decision and subsequently released from the Finan Center. The fact that the issues are moot, however, does not preclude per se our consideration of the issues raised. Although the instances in which courts will depart “from the general rule and practice of not deciding academic questions” are rare, they have been articulated as follows: [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 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 ¹³⁴ may find justification for deciding the issues raised by a question which has become moot, particularly if all these factors concur with sufficient weight.

Mercy Hosp., Inc. v. Jackson, 306 Md. 556, 562-63 , 510 A.2d 562 (1986) (quoting Lloyd v. Supervisors of Elections, 206 Md. 36, 43 , 111 A.2d 379 (1954)). When applying the standard expressed in Lloyd to the questions presented in the instant case, we conclude that our review and resolution of issue I, subject to our discussion in n. 13 and n. 15, infra, is appropriate. The forcible administration of medication to patients confined in state hospitals undoubtedly concerns “a relationship between the government and its citizens.” Beeman I, supra, 105 Md.App. at 158 , 658 A.2d 1172 . Similarly, we are convinced that ensuring that forced medication procedures are conducted in concordance with constitutional due process principles is a “matter of important public concern.” See Williams v. Wilzack, 319 Md. 485 , 573 A.2d 809 (1990) (holding that previous version of HG § 10-708 violated due process rights of patients, discussed infra).

Additionally, the situation involved here is likely to recur as to appellant and others similarly situated. 9 The parties do not seriously dispute that appellant’s schizoaffective disorder is generally resistant to treatment, depending, inter alia, on the regularity with which she takes her medicine. The record also reflects that appellant has habitually refused to take her prescribed medicine voluntarily in the past, requiring repeated involuntary admissions to the Finan Center, thus perpetuating the issues raised here. See Beeman I, supra, 105 Md.App. at 152 , 658 A.2d 1172 . Moreover, while not part of the record in this case, statistics compiled by DHMH in its evaluation reports on clinical review panels contained in the statute’s legislative history indicate that, in fiscal years 1992, 1993, and ¹³⁵ 1994, clinical review panels convened in Mental Hygiene Administration (“MHA”) facilities approved forced medication in 175 cases per year, from which 73 appeals were taken annually to the OAH, on average. 10 These numbers are certainly large enough to convince us that the potential for recurrence of the issues raised here with respect to the exercise of appeal rights is of substantial magnitude.

Lastly, because forced medication decisions are only valid for ninety days from their date of issuance, HG § 10-708(m), “even an expedited appeal is not sufficiently swift to assure review of an order authorizing forced administration of anti-psychotic medications.” Beeman I, supra, 105 Md.App. at 159 , 658 A.2d 1172 . Therefore, upon subsequent recurrences of the issues properly presented in this case, because of inherent time constraints, the same difficulty that rendered the present appeal moot would also prevent later cases from being reviewed ordinarily. Accordingly, being satisfied that the Lloyd factors “concur with sufficient weight,” we shall address the merits of appellant’s case as properly raised on this record by issue I. STANDARD OF REVIEW Before we begin our examination of the disputed issues, we note the scope of review we shall apply. The scope of review on appeal to this court is substantially that of the circuit court—we must review the administrative decision itself.

Beeman I, supra, 105 Md.App. at 154 , 658 A.2d 1172 (citing Public Serv. Comm’n v. Baltimore Gas & Elect. Co., 273 Md. 357, 362 , 329 A.2d 691 (1974)) (other citations omitted). The decision of the ALJ in the instant case constituted a final decision for judicial review purposes under the Administrative Procedure Act (“APA”), codified at Md. State Gov’t Code Ann. (“SG”) § 10-101 et seq.

HG § 10-708(k)(9). Pursuant to the APA, whether the reviewing court is a circuit court or an appellate court, Kohli v. LOOC, Inc., 103 Md.App. ¹³⁶ 694, 708 , 654 A.2d 922 (1995) (citing Fort Washington Care Ctr. v. Department of Health and Mental Hygiene, 80 Md. App. 205, 213 , 560 A.2d 613 (1989)), it may: (1) remand the case for farther 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; (in) results from an unlawful procedure; (iv) is unsupported by competent, material, and substantial evidence in light of the entire record as submitted; or (v) is arbitrary or capricious. SG § 10-222(h) (Supp.1995). Although the primary thrust of appellant’s contentions of error put forth in this appeal is constitutional in nature, the ALJ’s conclusion that appellant’s administrative appeal should be dismissed was also dependent on her factual findings.

A distinction is drawn in the scope of review depending upon whether the court is reviewing an administrative agency’s findings of fact as opposed to purely legal conclusions. “To the extent the issues on appeal turn on the correctness of an agency’s findings of fact, such findings must be reviewed under the substantial evidence test.” Department of Human Resources v. Thompson, 103 Md.App. 175, 190 , 652 A.2d 1183 (1995) (citing State Election Bd. v. Billhimer, 314 Md. 46, 58-59 , 548 A.2d 819 (1988), cert. denied, 490 U.S. 1007 , 109 S.Ct. 1644 , 104 L.Ed.2d 159 (1989)). “Substantial evidence” is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Anderson v. Department of Public Safety, 330 Md. 187, 213 , 623 A.2d 198 (1993) (quoting Bulluck v. Pelham Wood Apartments, 283 Md. 505, 512 , 390 A.2d 1119 (1978)). In utilizing the substantial evidence test, an appellate court does not substitute its judgment, even on the question of the appropriate inference to ¹³⁷ be drawn from the evidence, for that of the agency. E.g., Liberty Nursing Ctr., Inc. v. Department of Health and Mental Hygiene, 330 Md. 433, 442 , 624 A.2d 941 (1993) (and cases cited therein). Rather, the test is a deferential one, requiring restrained and disciplined judicial judgment so as not to interfere with the factual conclusions of the agency that are adequately supported by the record.

Billhimer, supra, 314 Md. at 58 , 548 A.2d 819 . A different, more expansive standard applies to purely legal conclusions, i.e., “where the agency’s decision is predicated solely upon an error of law, no deference is appropriate and the reviewing court may substitute its judgment for that of the administrative agency.” Kohli, supra, 103 Md.App. at 711, 654 A.2d 922 (citing Washington Nat’l Arena v. Comptroller of Treasury, 308 Md. 370, 378-79 , 519 A.2d 1277 (1987)); see, e.g., Liberty Nursing, supra, 330 Md. at 443, 624 A.2d 941 (citing Ramsay, Scarlett & Co. v. Comptroller, 302 Md. 825, 837 , 490 A.2d 1296 (1985)). Therefore, the ALJ’s conclusion regarding the impact of appellant’s constitutional due process challenge will not be given the same deference in our analysis as her fact-finding. STATUTORY BACKGROUND In 1990, the Court of Appeals, in Williams v. Wilzack, supra, declared the prior version of HG § 10-708 unconstitutional because it contravened procedural due process protections of both the state and federal constitutions.

The specific due process requirements, mandated by the United States Supreme Court in Washington v. Harper, 494 U.S. 210 , 110 S.Ct. 1028 , 108 L.Ed.2d 178 (1990), that the Williams court indicated the prior statute lacked were: (1) “advance notice of the proceedings before the clinical review panel;” (2) the right of the patient 11 “to be present” when the panel convened; (3) ¹³⁸ “to present evidence^ (4) ] to cross-examine witnesses[; (5) ] to have the assistance of an advisor who understands the psychiatric issues involved[;] and [ (6) ] to obtain judicial review of an adverse panel decision before its implementation.” Williams, supra, 319 Md. at 509 , 573 A.2d 809 . After Williams invalidated HG § 10-708, psychiatric facilities in Maryland were not able to administer antipsychotic medication involuntarily to mental patients who refused it unless a court declared the patient incompetent and the appointed guardian approved the administration of the medicine. See Bill Analysis of H.B. 588 (1991). In response to Williams , a Mental Hygiene Administration task force, consisting of mental health consumers, advocates, attorneys, doctors, and state officials, was assembled to draft proposed legislation, which was later enacted by the Maryland General Assembly in 1991 as the successor statute to the invalidated HG § 10-708.

The revised statute provided for enlarged procedural safeguards purportedly in order to comport with the due process requirements as defined by caselaw. 12 In addition, the 1991 revision of the statute included a “sunset provision,” i.e., the statute would expire on its own terms two years from its effective date of 1 July 1991. The new statute also directed that an evaluation report recommending either reestablishment or termination of the revised statute was to be prepared by DHMH and submitted to the Governor and the General Assembly by “the end of 1 January 1993.” Ch. 385, § 2 (Acts of 1991). During the 1993 legislative session, DHMH submitted its evaluation report recommending reestablishment of the revised HG § 10-708. The constituency that was represented on the original task force, augmented by the Legal Aid Bureau, Inc., commented on this proposal.

The Maryland Disability Law Center and the Legal Aid Bureau, Inc., concerned generally with a patient’s competency to understand the process, recommended that the statute be further revised, ¹³⁹ inter alia, to require a clinical review panel, before it decided to order forced medication, essentially to determine whether the individual lacked the capacity to make or communicate responsible or reasonable decisions concerning mental health treatment or other personal matters. DHMH opposed such an amendment because, absent specific instances of “miscarriages of justice” under the present statute, it “would place additional burdens, in terms of both time and money, on providers.” The legislature did not include the proposed amendments from these advocacy groups in the adopted bills. The expiration period of the statute was thereafter extended until 1 July 1995, with another evaluation report being required in January of 1995. Ch. 135 § 1 (Acts of 1993).

DHMH submitted another evaluation report, upon which the task force constituency again commented, for the 1995 legislative session, at which the statute was further extended until 1 July 1999, with another evaluation report being due at the end of 1 January 1999. Ch. 266 (Acts of 1995). Concerning the 1995 session proposal, the Maryland Disability Law Center advocated, once again without avail, the need to include a provision requiring the review panel to determine, concurrently with any decision to force medication, the competency of the patient to make or communicate reasonable decisions concerning his or her treatment. Additionally, another patient advocacy group, On Our Own of Maryland, Inc., unsuccessfully proposed a mandate that legal counsel be provided for a patient at the time the panel convenes.

Having considered the history of the statute, we turn now to address the contentions of appellant. I. DUE PROCESS Appellant contends that the application of the forty-eight hour appeal period provided in HG § 10-708(k)(l) to her in this case, without assessing or accounting for her mental capacity to understand and exercise her appeal rights during that period, violated her due process rights under the Four ¹⁴⁰ teenth Amendment or Article 24 of the Maryland Declaration of Rights. 13 Essentially, according to appellant, in order for the statute to withstand constitutional scrutiny, it must be construed as requiring a determination of the patient’s mental competency to understand his or her administrative appeal rights concurrent with notice being given to the patient of the clinical review panel’s decision to medicate forcibly. Appellant submits that, if it is determined that the patient lacks the mental capacity to understand his or her right of appeal at that time, the appeal should be automatically docketed, and the matter should proceed to the ALJ. Alternatively, appellant argues that if the appeal is filed late, as it was iri the instant case, the matter should also proceed to the ALJ as a ¹⁴¹ matter of course for a determination of whether the time limit should be waived because of the patient’s lack of capacity to understand and exercise the right of appeal during the forty-eight hour period.

Thus, she continues, since the ALJ in this case only determined whether the requirements of the statute were adhered to by DHMH and whether appellant noted her appeal within the forty-eight hour period, and not whether appellant was mentally competent to understand and act on her administrative appellate rights, her constitutional rights were thereby infringed. Although appellant has only preserved, on this record, an “as applied” due process challenge (see n. 13, supra), her contention presents us with the opportunity to determine whether HG § 10-708, revised in response to Williams v. Wilzack, supra, comports with due process. 14 We conclude that additional protections are not required to be judicially engrafted to the already hybridized vine and protecting leaves of the statute as currently codified in order to save it from the constitutional phylloxera infestation identified by appellant. As a threshold matter, we note that the due process clauses of Article 24 of the Maryland Declaration of Rights and the Fourteenth Amendment of the United States Constitution have the same meaning. Pitsenberger v. Pitsenberger, 287 Md. 20, 27 , 410 A.2d 1052 , appeal dismissed, 449 U.S. 807 , 101 S.Ct. 52 , 66 L.Ed.2d 10 (1980).

We also acknowledge that legislative acts are presumed to be constitutional, and that a person challenging a statute has the burden of affirmatively establishing its invalidity. Cider Barrel Mobile Home Court v. Eader, 287 Md. 571, 579 , 414 A.2d 1246 (1980) (citing Governor of Maryland v. Exxon Corp., 279 Md. 410, 426 , 372 A.2d 237 (1977), aff'd, 437 U.S. 117 , 98 S.Ct. 2207 , 57 L.Ed.2d 91 (1978); Salisbury Beauty Sch. v. State Bd. of ¹⁴² Cosmetologists, 268 Md. 32, 48 , 300 A.2d 367 (1973)); Department of Natural Resources v. Linchester, 274 Md. 211, 218 , 334 A.2d 514 (1975) (citing Maryland Bd. of Pharmacy v. Sav-A-Lot, 270 Md. 103, 106-07 , 311 A.2d 242 (1973); Salisbury Beauty Sch., supra, 268 Md. at 48-49 , 300 A.2d 367 ). Before reaching the issue of whether appellant was provided with sufficient procedural due process, we must first be satisfied that, as a substantive matter, appellant has a constitutional interest in avoiding the administration of anti-psychotic drugs. We believe that she has a significant constitutional liberty interest in being free from the arbitrary and capricious administration of such medicines. 15 See Riggins v. Nevada, 504 U.S. 127 , 112 S.Ct. 1810 , 118 L.Ed.2d 479 (1992); Washington v. Harper, supra, 494 U.S. 210, 221-22 , 110 S.Ct. 1028, 1036-37 , 108 L.Ed.2d 178 (1990); United States v. Charters, 863 F.2d 302, 305 (4th Cir.1988), cert. denied, 494 U.S. 1016 , 110 S.Ct. 1317 , 108 L.Ed.2d 493 (1990).

Having found the existence of a substantive constitutional interest, we next consider whether the existing statutory procedural protections adequately protect appellant. “[D]ue process does not require adherence to any particular procedure. On the contrary, due process is flexible and calls only for such procedural protections as the particular situation demands.” E.g., Maryland Racing Comm’n v. Castrenze, 335 Md. 284, 299 , 643 A.2d 412 (1994) (citing Department of Transp. v. Armacost, 299 Md. 392, 416 , 474 A.2d 191 (1984)). In Mathews v. Eldridge, 424 U.S. 319 , 96 S.Ct. 893 , 47 L.Ed.2d 18 (1976), the United States Supreme Court formulated a balancing test that it continues to employ in evaluating due process questions. ¹⁴³ [O]ur prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Id. at 334-35 , 96 S.Ct. at 903 .

The parties agree that this is the balancing test to be employed in this case. The first Mathews factor, the nature of the private interest affected, was discussed above as being a significant right. Nevertheless, as was recognized in Charters, supra, constitutional interests retained by involuntarily committed individuals “must yield to the legitimate government interests that are incidental to the basis for the legal institutionalization, and are only afforded protection against arbitrary and capricious government action.” Charters, supra, 863 F.2d at 305 (citations omitted). Appellant was involuntarily retained at the Finan Center because she needed mental health treatment.

See HG §§ 10-613 to 10-633 (describing the criteria and procedures for involuntary admissions). Thus, the governmental interest in providing appellant with the mental health care that she required must also be considered alongside appellant’s interest in being free from arbitrary and capricious government action. The second factor in the Mathews balancing test is really the main focus of the constitutional questions raised on this appeal. This is especially so because the record of appellant’s case, as opposed to the legislative history of the statute, is completely devoid of any empirical data that could be used to formulate an argument one way or the other on the final factor, i.e., the fiscal or administrative burdens that the additional procedures requested by appellant would place upon the ¹⁴⁴ State. 16 The second factor looks first at the risk of an erroneous deprivation of appellant’s constitutional interests through the existing procedures.

Without considering the due process safeguards afforded to appellant relating to her involuntary admission to the Finan Center, but focusing solely on the forced medication at issue, the following procedural protections are provided by the statute: (1) Medication cannot be administered to a patient in a non-emergency situation, unless the patient is hospitalized involuntarily and the medication is approved by a clinical review panel, HG § 10—708(b), and in any event, medication cannot be involuntarily administered for a period of longer than 90 days, without another panel being convened and approving a renewal. HG § 10-708(m); (2) Notice of the panel must be given to the patient and the lay advisor at least 24 hours prior to the convening of the panel. HG § 10-708(d); (3) The notice provided must include the date, time, location, and purpose of the panel, and must also describe the following rights of the patient: (a) the right to attend the meeting of the panel; (b) to present information to the panel, including witnesses; (c) to ask questions of any person presenting information to the panel; (d) to request assistance from a lay advisor; and ¹⁴⁵ (e) to be informed of their diagnosis and an explanation of the clinical need for the medication, including potential side affects, and the material risks and benefits of taking or refusing the medicine. HG § 10-708(e); (4) Once a decision has been made by the panel to medicate, pursuant to the contours set forth in HG § 10—708(g) and (h), it must be documented with notice given to the patient of his or her right to request a hearing under HG § 10-708(k), his or her right to counsel, and the name, address, and telephone number of the State protection and advocacy agency and the Lawyer referral service.

HG § 10—708(i); (5) The patient is entitled to the benefit of the lay advisor, who, after the panel has approved the medication, shall promptly inform the patient of his or her right to appeal under subsection (k), insure that the patient can access a telephone, and notify the appropriate personnel if the patient desires to appeal. HG § 10-708(j); (6) The patient has the right, within forty-eight hours of receipt of the decision by the panel to appeal the decision to an administrative law judge, with the administration of medicine being stayed during that forty-eight hour period, or, if a hearing is requested, the stay continues until the administrative decision is issued. HG § 10-708(k); and (7) The patient is given the further right to expedited judicial review of the ALJ’s decision on