Johnson v. Dept. of Health

Gregory Johnson v. Maryland Department of Health, No. 71, September Term, 2019. Opinion by Biran, J. STATUTORY INTERPRETATION – SEPARATION OF POWERS – HEALTH- GENERAL § 10-708(g)(3) – INVOLUNTARY MEDICATION OF PERSON FOUND INCOMPETENT TO STAND TRIAL – The Court of Appeals held that, under Md. Code Ann., Health-General (“HG”) § 10-708 (2019 Repl. Vol.), the Maryland Department of Health (the “Department”) is authorized to involuntarily medicate an individual for the purpose of restoring competency to stand trial, provided the Department complies with requirements of due process. The Court also held that the General Assembly’s placement of authority in the Department and an administrative law judge to decide whether to involuntarily medicate a person to restore competency is permissible under Maryland’s separation of powers.

CONSTITUTIONAL LAW – PROCEDURAL DUE PROCESS – INVOLUNTARY MEDICATION OF PERSON FOUND INCOMPETENT TO STAND TRIAL – The Court of Appeals held that, while Petitioner has a significant liberty interest in avoiding unwanted psychiatric medication, the administrative process set forth in HG § 10-708 adequately mitigated the risk of erroneous deprivation of that interest. Petitioner availed himself of all the procedures provided in § 10-708. Thus, the Court held that the administrative law judge’s order directing the Department to involuntarily medicate Petitioner to restore him to competency to stand trial did not deprive Petitioner of procedural due process. Circuit Court for Howard County Case No. C-13-CV-19-000876 Argued: June 10, 2020 IN THE COURT OF APPEALS OF MARYLAND No. 71 September Term, 2019 Case No. 419686V Argued 1/7/19 GREGORY JOHNSON v. MARYLAND DEPARTMENT OF HEALTH Barbera, C.J. McDonald Watts Hotten Getty Booth Biran, JJ.

Opinion by Biran, J. Filed: August 24, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2021-02-11 15:00-05:00 Suzanne C. Johnson, Clerk After Gregory Johnson allegedly stabbed his neighbor, he was charged with attempted first-degree murder and related offenses. Prior to this incident, Mr. Johnson had an almost decade-long history of harboring irrational, persecutory beliefs. After receiving a competency evaluation of Mr. Johnson, a circuit court judge in Baltimore City found Mr. Johnson incompetent to stand trial and dangerous, and committed him for treatment to Clifton T. Perkins Hospital Center (“Perkins”), a State-run forensic psychiatric hospital in Howard County. At Perkins, Mr. Johnson was diagnosed with Unspecified Schizophrenia Spectrum and Other Psychotic Disorder.

After Mr. Johnson repeatedly refused to take antipsychotic medication that psychiatrists at Perkins prescribed for him, the Maryland Department of Health (the “Department”) began the process under the applicable Maryland statute to administer the medication to Mr. Johnson involuntarily. A clinical review panel at Perkins determined that the prescribed medication was necessary, among other reasons, to restore Mr. Johnson to competency, and informed Mr. Johnson that the Department approved the administration of the medication to him for a period of 90 days. Mr. Johnson then exercised his right under statute to a de novo administrative hearing to review the panel’s conclusion. After holding that hearing, an administrative law judge (“ALJ”) ordered Mr. Johnson’s involuntary medication to restore Mr. Johnson to competency.

Mr. Johnson then sought judicial review of the ALJ’s decision, and a circuit court judge upheld the ALJ’s order. Mr. Johnson argues that the Maryland statute governing involuntary medication does not authorize the Department to medicate a person for the purpose of competency restoration. Mr. Johnson also argues that, to the extent the statute does authorize involuntary medication to restore competency through an administrative process, it violates Maryland’s separation of powers and deprives Mr. Johnson of procedural due process. According to Mr. Johnson, when the Department seeks to forcibly medicate an individual for the purpose of restoring competency to stand trial, the decision to authorize such medication can only be made by the criminal trial judge after holding a hearing during which the defendant has the assistance of criminal defense counsel.

For the reasons discussed below, we hold that Maryland law authorizes involuntary medication to restore an individual’s competence to stand trial, and does not violate separation of powers by entrusting an ALJ with the power to order such medication, subject to judicial review. Before the Department may infringe on a person’s significant liberty interest in avoiding unwanted psychotropic drugs, the Department and an ALJ must comply with rigorous requirements of due process. Because the Department and the ALJ met these requirements in Mr. Johnson’s case, we find no error in the order authorizing Mr. Johnson’s involuntary medication. I Background A. Pertinent Statutory Provisions 1.

Commitment Following a Finding of Incompetent to Stand Trial A person accused of committing a crime is presumed competent to stand trial. Wood v. State, 436 Md. 276, 285 (2013). Title 3 of the Criminal Procedure Article governs the procedures a criminal trial court must use when a defendant’s competence is called into question. If, before or during a trial, a defendant “appears to the court to be incompetent to 2 stand trial or the defendant alleges incompetence to stand trial, the court shall determine, on evidence presented on the record, whether the defendant is incompetent to stand trial.” Md. Code Ann., Crim.

Proc. (“CP”) § 3-104(a) (2018 Repl. Vol.). “Incompetent to stand trial” (sometimes abbreviated in this opinion as “IST”) means that the defendant is “not able: (1) to understand the nature or object of the proceeding; or (2) to assist in [his or her] defense.” Id. § 3-101(f). Under CP § 3-106(c)(1)(i): If, after a hearing, the court finds that the defendant is incompetent to stand trial and, because of mental retardation or a mental disorder, is a danger to self or the person or property of another, the court shall order the defendant committed to the facility that the Health Department designates until the court finds that: 1. the defendant no longer is incompetent to stand trial; 2. the defendant no longer is, because of mental retardation or a mental disorder, a danger to self or the person or property of others; or 3. there is not a substantial likelihood that the defendant will become competent to stand trial in the foreseeable future.

The Department must report to the court whenever the Department believes that the defendant is no longer IST or no longer dangerous because of a mental disorder, or that there is not a substantial likelihood the defendant will become competent to stand trial in the foreseeable future. Id. § 3-108(a)(1)(ii). Whenever the Department makes such a report or otherwise provides the court with “opinions, facts, or circumstances that have not been previously presented to the court and are relevant to the determination” whether the defendant should remain committed, the court must hold a hearing within the next 10 business days to make such a determination. Id. § 3-106(d)(1)(iii).

Regardless, the Department must provide the court with a report on the defendant’s status every six months. 3 Id. § 3-108(a). A hearing to reassess the defendant’s incompetence and dangerousness must be held at least annually, id. § 3-106(d)(1)(i), or upon the filing of a motion by the prosecutor or defense counsel setting forth new facts or circumstances that are relevant to the determination of continued commitment. Id. § 3-106(d)(1)(ii). In addition, the court may hold a conference to review the status of the defendant’s commitment at any time on its own initiative.

Id. § 3-106(d)(2). 2. Involuntary Medication Under the Health-General Article The Health-General Article of the Maryland Code provides the process for involuntary administration of psychiatric medication to mentally ill individuals. Md. Code Ann., Health-General (“HG”) § 10-708 (2019 Repl. Vol.).

Absent an emergency, medication may not be administered to an individual who refuses it unless the individual was admitted to a hospital involuntarily,1 or was “committed for treatment by order of a court,” id. § 10-708(b)(2), including commitment following a finding of IST. In either scenario, a clinical review panel must approve the involuntary medication. Id. A clinical review panel must consist of: (1) the clinical director of the facility’s psychiatric unit (if the clinical director is a physician) or a physician designated by the clinical director; (2) a psychiatrist; and (3) a mental health professional other than a physician.

Id. § 10-708(c)(1). A clinical review panel may approve the involuntary administration of medication prescribed by a psychiatrist to treat an individual’s mental 1 See HG §§ 10-614 – 10-617 (setting forth the process for involuntary hospitalization of a person due to a mental disorder). 4 disorder if the panel determines that the prescribing psychiatrist has exercised reasonable medical judgment and: 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.

Id. § 10-708(g)(3). The individual whom the clinical review panel will consider medicating has the right to notice of when and where the panel will convene, id. § 10-708(e)(1)(i), the purpose of the panel, id. § 10-708(e)(1)(ii), and notice of the individual’s rights before the panel, which include the right: 5 (i) To attend the meeting of the panel, excluding the discussion conducted to arrive at a decision; (ii) To present information, including witnesses; (iii) To ask questions of any person presenting information to the panel; (iv) To request assistance from a lay advisor[2]; and (v) To be informed of: 1. The name, address, and telephone number of the lay advisor; 2. The individual’s diagnosis; and 3.

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. Id. §§ 10-708(e)(1)(iii) & (e)(2). A clinical review panel must document its consideration of the issues and the basis for its decision on the administration of medication(s). Id. § 10-708(i)(1).

To that end, the panel must provide a written decision to the individual, the individual’s lay advisor, and the individual’s treatment team. Id. § 10-708(i)(2). If the panel approves the administration of medication, the decision must specify, among other things, the medication or medications approved and the dosage and frequency range. Id. § 10-708(i)(3)(i).

The written decision also must provide the individual with notice of the right to request a hearing before an ALJ from the Office of Administrative Hearings (“OAH”), as well as the right to request representation or assistance of a lawyer or other advocate at such a hearing. A “lay advisor” is defined under HG § 10-708 as “an individual at a facility, who 2 is knowledgeable about mental health practice and who assists individuals with rights complaints.” HG § 10-708(a)(2). 6 Id. § 10-708(i)(4). The lay advisor must assist the individual in connection with submitting a request for a hearing. Id. § 10-708(k).

A hearing before an ALJ is conducted de novo within seven days after the panel’s decision, although a postponement of the hearing may be granted for good cause or if the parties agree. Id. §§ 10-708(l)(4), (l)(5) & (l)(6). The ALJ must state on the record the findings of fact and conclusions of law that support the ALJ’s decision. Id. § 10-708(l)(8).

Within 14 days from the issuance of the ALJ’s decision, either the individual or the facility may appeal the ALJ’s decision to a circuit court. Id. § 10-708(m)(1). The circuit court must hear and issue a decision within seven calendar days from the date the appeal was filed. Id. § 10-708(m)(4).

Further appellate review of the circuit court’s decision is available to the Court of Special Appeals and/or this Court. See Md. Code Ann., State Gov’t (“SG”) § 10-223(b) (2014 Repl. Vol.); Md. Code Ann., Cts. & Jud. Proc. § 12-201 (2013 Repl.

Vol.). 3. The Allmond Decision In Allmond v. Department of Health & Mental Hygiene, 448 Md. 592 (2017), this Court considered a facial constitutional challenge to HG § 10-708. Gary Allmond was committed to Perkins after a criminal trial court found him incompetent to stand trial for first-degree murder. Id. at 601.

Mr. Allmond presented with symptoms of serious mental illness, including paranoia, delusions, hallucinations, and disorganized thinking. Id. After Mr. Allmond refused to take prescribed psychotropic medications, a clinical review panel at Perkins convened to determine whether Mr. Allmond should be medicated against his will. Id. at 602-03.

The clinical review panel ordered Mr. Allmond to be medicated for a 7 90-day period, and Mr. Allmond did not challenge that determination. After a reconvened panel approved the involuntary administration of the prescribed medications for another 90-day period, Mr. Allmond requested a hearing to review the reconvened panel’s determination. After holding that hearing, an ALJ found that the continued administration of the medications was a reasonable exercise of professional judgment to treat Mr. Allmond’s mental disorder. Contrary to the clinical review panel, the ALJ found that Mr. Allmond, who had obtained the highest level of patient privileges at Perkins, was not a danger to himself or others either within or outside the facility, despite his continuing mental illness.

Id. at 602-04. However, the ALJ found that, without the continued administration of medications, Mr. Allmond would remain seriously mentally ill with no relief of the symptoms that had resulted in his commitment to the hospital. Id. at 604. Thus, the ALJ concluded that involuntary medication of Mr. Allmond was appropriate under HG §§ 10-708(g)(3)(i)(2) and (ii)(2).

Id. Mr. Allmond appealed to this Court, arguing that HG § 10-708(g), on its face, violates the guarantee of substantive due process under Article 24 of the Maryland Declaration of Rights by permitting forced medication without a showing of dangerousness in the facility. Id. at 596. We held that HG § 10-708 is not unconstitutional on its face.

However, we explained that the authorization for involuntary medication will comply with substantive due process only where there is “a finding of overriding justification” for such medication, id. at 613 (quoting Riggins v. Nevada, 504 U.S. 127, 135 (1992)), such as the need to render a “detainee competent to stand trial for a serious crime,” id., and where there is a finding that involuntary medication is consistent with the four factors the Supreme 8 Court identified in Sell v. United States, 539 U.S. 166, 180 (2003): (1) important state interests are at stake; (2) involuntary medication will significantly further those state interests; (3) involuntary medication is necessary to further those interests; and (4) the administration of the prescribed drugs is medically appropriate, i.e., in the patient’s best medical interest, in light of his or her medical condition. Id. at 612. B. Mr. Johnson’s Arrest and IST Finding Since approximately 2010, Mr. Johnson has believed that individuals are tracking, harassing, and stealing from him. In or about 2011, Mr. Johnson, then living in Baltimore County, believed that a neighbor was tracking his movements in Mr. Johnson’s apartment, using heat sensors.

After an altercation with that neighbor, Mr. Johnson was charged with second-degree assault in the District Court of Maryland sitting in Baltimore County. The court mandated that Mr. Johnson receive outpatient psychiatric treatment. Between 2011 and 2014, Mr. Johnson moved several times due to his belief that he was being harassed or tracked by unidentified individuals. Beginning in 2014, Mr. Johnson lived in an apartment building on Eutaw Place in Baltimore City.

For approximately a year leading up to May 2019, Mr. Johnson repeatedly accused one of his neighbors in the Eutaw Place building of breaking into his apartment to steal his clothes and television and to have sex with women. According to the neighbor, on May 15, 2019, Mr. Johnson aggressively confronted him near their apartment building’s laundry facility and again accused him of stealing his clothes. The neighbor struck Mr. Johnson, who allegedly then produced a knife, stabbed the neighbor in the stomach and torso, and 9 fled. The neighbor was very seriously injured, requiring emergency surgery at the University of Maryland Shock Trauma Center.

Mr. Johnson was arrested and subsequently charged in the Circuit Court for Baltimore City with attempted first- and second-degree murder, first- and second-degree assault, openly carrying a dangerous weapon with intent to injure, and reckless endangerment. On June 12, 2019, Mr. Johnson was transferred to Perkins for a pretrial competency evaluation. According to a treatment note concerning Mr. Johnson from July 3, 2019, Mr. Johnson “has some basic knowledge of [courtroom] proceedings, … but his paranoia gets in the way of him being competent to stand trial.” Among other things, Mr. Johnson believed that in 2017 he noticed a neighbor was wearing Johnson’s clothing. At this point, Johnson inspected his large wardrobe and found some pieces missing.

Johnson began to look for and find evidence of break-ins. He came to believe that a specific neighbor had replaced his king size mattress with a nearly identical king size mattress that was slightly different. He also believed this neighbor switched his television with an identical television, tampered with the sunroof in his car, and was breaking into his apartment while he was at Church. At one point, Johnson claimed he found semen on his sofa and on his bed and subsequently became convinced the neighbor had broken[]in and had sex on his furniture.

As such, Mr. Johnson began to skip Church. Johnson also suspected that all the neighbors around him knew that this specific neighbor was breaking[]in on a regular basis…. Johnson once suspected that the neighbor was monitoring his movements using an x-ray device; today, Johnson believes it is more likely that his neighbor had been using heat sensors to track his movements. A treatment note from July 15, 2019 recounted that “[e]ven when the delusional nature of his beliefs [was] broached, Mr. Johnson remained incredulous and maintained that paranoia was ‘heightened awareness’ of his surroundings.” 10 A Perkins forensic psychiatrist, Dr. Robinson,3 provided a competency evaluation concerning Mr. Johnson to the criminal trial court.

On July 17, 2019, the court found Mr. Johnson IST. The court committed Mr. Johnson to Perkins for treatment under CP § 3- 106(c)(1)(i), thus necessarily finding that Mr. Johnson was a “danger to self or the person or property of another” because of a mental disorder.4 Back at Perkins, Mr. Johnson “incorporated … the hospital and staff into his delusional system,” accusing them of having “surreptitiously given him psychotropic medications against his will” in place of his blood pressure medication. As detailed in his August 1, 2019 treatment note, Mr. Johnson’s treating psychiatrist, Dr. Adam Brown, discussed with Mr. Johnson the improbability of his persecutory beliefs, but Mr. Johnson remained steadfast in those beliefs and “refused to consider that he might be exhibiting symptoms of mental illness,” even when he had no other explanation to offer. For example, when asked why a neighbor would go to the trouble of using heat sensors to track Mr. Johnson, Mr. Johnson replied, “They exist don’t they?

So it’s possible.” However, Mr. Johnson was unable to explain why a neighbor would want to track him in such a manner. When Dr. Brown asked Mr. Johnson why someone would break into his residence and take his television, only to replace it with an identical television, Mr. Johnson responded by stating that Dr. Brown “did not understand how things were in the ‘ghetto,’ and alleged 3 Dr. Robinson’s first name is not contained in the record. 4 The transcript of the competency hearing in Mr. Johnson’s criminal case is not contained in the record of this case. Mr. Johnson does not dispute that he was properly committed to Perkins following the criminal trial court’s finding that he was IST. 11 that this was a common occurrence.” Mr. Johnson was unable to understand why a third party might consider his beliefs to be delusional. Although Mr. Johnson was not physically violent in the hospital and did not require restraints or emergency medication, he was irritable and, on at least two occasions, verbally abusive of Perkins’s staff.

He obtained “bronze” privileges at Perkins in the six weeks following his commitment, meaning that he required an escort to go anywhere in the hospital outside of his maximum-security ward.5 Dr. Brown diagnosed Mr. Johnson with Unspecified Schizophrenia Spectrum and Other Psychotic Disorder. After Mr. Johnson was prescribed a nightly five milligram dose of Haloperidol, an antipsychotic medication, he informed Perkins staff that “he had ‘no intention of taking psych medication’ and referenced his ‘intellectual abilities’ and ‘knowing’ he has ‘always been competent.’” On August 14, 2019, Mr. Johnson continued to refuse all antipsychotic medications. The treatment note from August 14 recounts that Mr. Johnson “believes we (his treatment team) are responsible for him still being in the hospital. He continues to believe this despite education on multiple occasions that he is hospitalized due to an order from the court.

He insinuates that we are keeping him hospitalized for a nefarious purpose.” Toward the end of the August 14 treatment meeting, Dr. Brown informed Mr. Johnson that Perkins would be convening a clinical review panel Bronze privilege is one level above “restricted” status, and below the silver, gold, 5 and platinum levels of privilege. At the higher privilege levels, patients are given more freedom within the facility, for example, being permitted to watch television in a room on their own. 12 to pursue approval to treat his mental illness and restore him to competency through the involuntary administration of the prescribed medication. C. Clinical Review Panel On August 14, 2019, the Department provided a written Notice of Clinical Review Panel to Mr. Johnson, informing him of the Department’s intent to convene a clinical review panel under HG § 10-708. The notice stated that the panel would convene at Perkins at 1:00 p.m. on the following day, August 15, 2019, to determine “whether psychiatric medication(s) shall be given to you despite your refusal.” The notice also advised Mr. Johnson of his various rights in connection with the panel.

The panel convened on August 15, 2019. In addition to Mr. Johnson and the three members of the panel, the other people present were Dr. Brown, Dr. Zaw Htwe (another treating psychiatrist on the ward where Mr. Johnson was housed), and Jerry Willis, who served as the “lay advisor” provided to Mr. Johnson under HG § 10-708(e)(2)(iv).6 Dr. Brown presented the argument as to why Mr. Johnson required the involuntary administration of medication, specifically Haloperidol and Benztropine (the latter being used to treat side effects of antipsychotic drugs such as Haloperidol). Dr. Brown provided the panel with Mr. Johnson’s clinical history and a description of his current symptoms, opining that Mr. Johnson “demonstrated evidence of considerable paranoia and has labored under the influence of persecutory delusions surrounding his neighbor and his circumstances during the year prior to the offense.” Dr. Brown further explained that Mr. 6 In the panel’s written decision concerning Mr. Johnson’s case, Mr. Willis is referred to as a “Rights Advisor.” 13 Johnson “was prescribed Haloperidol 5 mg at bedtime, but he refused to take it and has not accepted a single dose of psychotropic medication since his admission. He does not believe that he has a mental illness and has poor insight into his persecutory beliefs.” Dr. Brown “clearly indicated [Mr. Johnson’s] psychiatric problems – including irritability, paranoia, and persecutory delusional beliefs are not likely to resolve without treatment with antipsychotic medication.” Dr. Brown also opined that Mr. Johnson “is not likely to be restored to competency to stand trial without antipsychotic medication.” Mr. Johnson spoke on his own behalf, confirming his belief that a neighbor had harassed him, including by taking his king size bed and television and replacing them with nearly identical items.

Mr. Johnson stated that he did not need psychiatric medication because he believed he was telling the truth. In the written Decision of Clinical Review Panel, the panel affirmed Dr. Brown’s diagnosis that Mr. Johnson suffered from Unspecified Schizophrenia Spectrum and Other Psychotic Disorder, based on his “paranoia, persecutory delusions, frequent irritability, verbal hostility, lack of insight into illness, [and] poor judgment.” The panel determined that Mr. Johnson’s disorder “is a biological condition and other modalities, including therapy are ineffective. Medications are medically necessary and appropriate to treat [Mr. Johnson’s] mental illness and to restore him to competency.” The panel also informed Mr. Johnson of its findings that, without the medications prescribed by Dr. Brown, Mr. Johnson was at substantial risk of continued hospitalization due to remaining seriously mentally ill with no significant relief of, and for a significantly longer period of time with, the mental illness symptoms that: “[c]ause you to be a danger to yourself or others while in the 14 hospital; [r]esulted in your being committed to the hospital under Title 10 of the Health- General Article or Title 3 of the Criminal Procedure Article; or [w]ould cause you to be a danger to yourself or others if released from the hospital.” The panel concluded that no alternative treatments were acceptable to both Mr. Johnson and his treating physician, and that giving the recommended medications represented a reasonable exercise of professional judgment. The panel approved the involuntary administration of Haloperidol and Benztropine (or alternate medications suggested by the panel) to Mr. Johnson for a period of up to 90 days.

In accordance with HG § 10-708(i)(4), the panel advised Mr. Johnson of his right to request a hearing before an ALJ, and further advised him that he had the right to request representation or assistance at such a hearing. The panel also informed Mr. Johnson that his rights advisor would assist him in securing representation or assistance at a hearing, and also provided Mr. Johnson with contact information for a legal assistance provider and a lawyer referral service. D. Administrative Hearing Before the ALJ Following Mr. Johnson’s receipt of the Decision of Clinical Review Panel, Mr. Johnson invoked his right to a hearing and requested that the State provide him with legal representation at no cost to him. Mr. Johnson was informed that the administrative hearing would be scheduled within seven days of the panel’s decision, and that the hearing may be postponed by agreement of the parties or for good cause shown. 15 After a one-week postponement,7 an attorney from Disability Rights Maryland represented Mr. Johnson at a de novo hearing before an ALJ from the Office of Administrative Hearings, on August 29, 2019.

Mr. Johnson’s counsel introduced Perkins’s Individual Treatment Plan for Mr. Johnson (which contained the treatment notes discussed above) as an exhibit. The Department introduced several other exhibits, including the Decision of Clinical Review Panel. The Department presented its case primarily though the testimony of Dr. Brown, whom the ALJ accepted as an expert in general psychiatry and forensic psychiatry. Dr. Brown explained Mr. Johnson’s diagnosis of Unspecified Schizophrenia Spectrum and Other Psychotic Disorder, the lack of alternative treatment options, and the panel’s decision to medicate Mr. Johnson.

Dr. Brown identified delusions as Mr. Johnson’s most prevalent symptom and traced the history of his delusions going back to approximately 2010. Dr. Brown opined that antipsychotic medication was necessary to treat Mr. Johnson’s psychotic symptoms, particularly delusions, and to restore his competency to stand trial. Dr. Brown further opined that any side effects of the medications likely would not significantly interfere with Mr. Johnson’s ability to assist his defense counsel. Dr. Brown opined that, without the prescribed medications, Mr. Johnson was at substantial risk of remaining seriously mentally ill with no significant relief of, and for a significantly longer period of time with, the mental illness symptoms that cause him to be a danger to himself or others while in the hospital; resulted in his being committed to the hospital as 7 The record does not indicate the reason for the postponement. 16 IST; and would cause him to be a danger to himself or others if released from the hospital.

Dr. Brown further opined that the administration of the prescribed medications represented a reasonable exercise of professional judgment and, based on average treatment time in literature, would cause improvement in approximately 70 days. Mr. Johnson’s counsel cross-examined Dr. Brown. At one point, Mr. Johnson’s counsel elicited from Dr. Brown that Mr. Johnson’s “delusions have remained” throughout his course of treatment. The following exchange then occurred: COUNSEL: Okay.

And, for that reason, it’s your opinion that even today Mr. Johnson remains not competent to stand trial? DR. BROWN: Correct. COUNSEL: Because if he were competent, we wouldn’t be here today?

DR. BROWN: He – he wouldn’t be in the hospital. I mean – COUNSEL: Right. And if you have found him – if you – I mean, he could be in the hospital if he was competent, right?

DR. BROWN: Yeah, he could be. COUNSEL: Because competency is fluid, correct? DR.

BROWN: Correct. COUNSEL: So, someone could come in not competent and then, you know, they can be restored to competency? DR. BROWN: Sure.

COUNSEL: So, if it was your opinion that he had been restored to competency we wouldn’t be here … , correct? DR. BROWN: Correct. 17 After the Department concluded its presentation, Mr. Johnson’s counsel moved to strike Dr. Brown’s testimony concerning restoration of competency through forcible medication. Mr. Johnson’s counsel argued that, because the ALJ lacked jurisdiction to decide whether Mr. Johnson remained incompetent to stand trial, Mr. Johnson was “precluded from raising the most obvious affirmative defense to competency restoration, which is the fact that he is competent.” The following exchange then occurred between the ALJ and counsel for Mr. Johnson: ALJ: Why hasn’t Mr. Johnson filed some kind of motion with the circuit court to have his competency re-evaluated?

If you’re saying that he’s competent, why hasn’t he moved for that? There’s been an official court order determining … that he is incompetent… [I]nstead of challenging it here, why doesn’t he challenge it in the appropriate forum of the circuit court? COUNSEL: Well, your Honor, he could do that…. ALJ: Okay.

I’m going to overrule the objection. COUNSEL: Okay. ALJ: You just said all you need to say. COUNSEL: I’m just going to – this proceeding is separate and apart from his criminal case.

ALJ: Understood…. [W]e can’t talk about competency here, but he has the opportunity to say that he’s competent in another forum. He’s chosen not to do it. So, I have to accept the … ruling of the circuit court which is that he is incompetent. After hearing closing arguments, the ALJ found that the Department had shown all the requirements for an order of involuntary medication under HG § 10-708.

As pertinent here, the ALJ found that, without administration of the medications, Mr. Johnson was at a 18 substantial risk of continued hospitalization due to remaining seriously mentally ill with no significant relief of, and for a significantly longer period time with, the mental health symptoms that: (1) resulted in Mr. Johnson being committed under Title 3 of the Criminal Procedure Article; and (2) would cause Mr. Johnson to be a danger to himself or others if released from the hospital. The ALJ did not find that Mr. Johnson was a danger to himself or others within Perkins without the prescribed medications. The ALJ then considered whether the involuntary administration of medication to Mr. Johnson would violate Mr. Johnson’s right to substantive due process, applying the four-part test set forth in Sell v. United States, which this Court adopted in Allmond. The ALJ found by clear and convincing evidence that the State had shown: (1) it has an important interest in prosecuting Mr. Johnson for the serious crimes with which he is charged, including attempted murder; (2) involuntary medication of Mr. Johnson will further this State interest by enabling Mr. Johnson to become competent to stand trial; (3) involuntary medication is necessary to further this interest; that is, there are no less intrusive alternatives to involuntary medication that would allow the State to bring Mr. Johnson to trial; and (4) administration of drugs is medically appropriate in light of Mr. Johnson’s medical condition.

Finally, citing Allmond, the ALJ found that restoring Mr. Johnson to competency provided an “overriding justification” for his involuntary medication. The ALJ issued a written order on August 29, 2019, approving the Department’s administration of the prescribed antipsychotic medications to Mr. Johnson for up to 90 days. 19 E. Judicial Review On September 4, 2019, Mr. Johnson filed a petition for judicial review of the ALJ’s decision in the Circuit Court for Howard County, where Perkins is located. The circuit court held a hearing on Mr. Johnson’s petition on September 25, 2019. Mr. Johnson contended that HG § 10-708 does not authorize the ALJ to order involuntary medication for the purpose of restoration of competence to stand trial.

In addition, Mr. Johnson argued that HG § 10-708 deprives him of procedural due process. Finally, Mr. Johnson claimed that the Department failed to meet its burden by clear and convincing evidence under the Sell four-part test. On September 29, 2019, the circuit court entered an Order denying Mr. Johnson’s petition and affirming the ALJ’s decision. The court found substantial evidence in the record to support the ALJ’s decision and held that the ALJ had not made any errors of law.

Following the circuit court’s decision, Mr. Johnson noted an appeal to the Court of Special Appeals. On December 16, 2019, before the Court of Special Appeals decided his appeal, Mr. Johnson filed with this Court a verified motion for injunctive relief and a petition for writ of certiorari.8 On February 11, 2020, we granted Mr. Johnson’s certiorari petition, Johnson v. Maryland Dep’t of Health, 467 Md. 263 (2020), and denied his motion for injunctive relief. In granting certiorari, we agreed to review the following questions: In his petition, Mr. Johnson did not seek further review of the ALJ’s application 8 of the Sell factors or otherwise challenge the order of involuntary medication on substantive due process grounds. 20 1. Did Respondent impermissibly decide issues of competency in violation of the U.S. Constitution and the Maryland Declaration of Rights when it used an administrative process to forcibly medicate Petitioner for competency restoration based on a statute that omits language authorizing involuntary medication for that purpose? 2.

Did Respondent violate the U.S. Constitution and Maryland Declaration of Rights, which guarantee a criminal defendant certain due process and trial rights, when it forcibly medicated Petitioner after an administrative proceeding that prohibited him from asserting affirmative defenses related to his competency to rebut Respondent’s case and denied him meaningful access to his criminal defense attorney?[9] II 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.” Allmond, 448 Md. at 608 . We review the ALJ’s findings of fact under the substantial evidence test, which is deferential to the administrative determination. See id. We review the ALJ’s conclusions of law without special deference.

Id. 9 In his motion for injunctive relief, Mr. Johnson reported that the Department reconvened a clinical review panel on November 13, 2019. That panel did not recommend involuntary medication for Mr. Johnson, finding that he had “agreed to take medications voluntarily.” The panel reserved the right to reconvene if Mr. Johnson refused to take his prescribed medication “in the future.” According to Mr. Johnson’s motion for injunctive relief, the second panel “misinterpreted the meaning of Mr. Johnson’s statements” during the panel meeting, and Mr. Johnson in fact refused to take the prescribed medications after the second clinical review panel concluded. We are not aware of the Department having convened another clinical review panel regarding Mr. Johnson after the November 13, 2019 panel. The Department has not argued for any reason that either of the questions we agreed to review is moot, nor do we see any basis to reach that conclusion. 21 III Discussion In arguing for reversal of the ALJ’s decision to approve his involuntary medication, Mr. Johnson first contends that the Department and the ALJ exceeded their authority because: (1) HG § 10-708 does not permit involuntary medication for the purpose of restoring a person to competency to stand trial; and (2) both the Department and the ALJ necessarily decided the question of Mr. Johnson’s competence to stand trial, in violation of Maryland’s separation of powers mandated by Article 8 of the Declaration of Rights.

Second, Mr. Johnson claims that, to the extent HG § 10-708 authorizes involuntary medication to restore competency, the administrative process set forth in § 10-708 deprived him of procedural due process because it created an intolerably high risk of an erroneous deprivation of his interest in avoiding unwanted psychiatric medication. As discussed below, we conclude that Mr. Johnson’s claims lack merit. A. Under Maryland Law, the Department or an ALJ May Approve Involuntary Medication to Restore Competency to Stand Trial. 1. HG § 10-708 Authorizes the Department to Involuntarily Medicate a Person to Restore the Person to Competency to Stand Trial on Criminal Charges.

When we interpret a statute, our goal is to ascertain and effectuate the actual intent of the General Assembly. Lockshin v. Semsker, 412 Md. 257, 274 (2010). We begin this inquiry by examining the plain meaning of the statutory language. Agnew v. State, 461 Md. 672, 679 (2018).

If the language of the statute is unambiguous and clearly consistent with the statute’s apparent purpose, our inquiry ordinarily comes to an end, and we apply the statute as written, without resort to other rules of construction. Lockshin, 412 Md. at 275 . 22 However, we do not analyze statutory language in a vacuum. Matter of Collins, 468 Md. 672, 689-90 (2020). “Rather, statutory language ‘must be viewed within the context of the statutory scheme to which it belongs, considering the purpose, aim, or policy of the Legislature in enacting the statute.’” Id. (quoting Lockshin, 412 Md. at 276 ). “Where the statutory language is subject to more than one reasonable interpretation, or its meaning is not clear when considered in conjunction with other statutory provisions, we may glean the legislative intent from external sources.” In re R.S., 470 Md. 380 , 2020 WL 4744912 , at ⁹ (Aug. 17, 2020) (internal quotation marks and citation omitted). “Whether the statutory language is clear or ambiguous, it is useful to review the legislative history of the statute to confirm that interpretation and to eliminate another version of the legislative intent alleged to be latent in the language.” Id.

(cleaned up). We presume that the Legislature intends its enactments to operate “as a consistent and harmonious body of law, and, thus, we seek to reconcile and harmonize the parts of a statute, to the extent possible consistent with the statute’s object and scope.” Lockshin, 412 Md. at 276 . Relatedly, we interpret “the statute as a whole to ensure that no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless or nugatory.” Johnson v. State, 467 Md. 362, 372 (2020) (quoting Phillips v. State, 451 Md. 180, 196-97 (2017)). “Finally, consideration of the consequences of alternative interpretations of the statute grounds the analysis.” In re O.P., 470 Md. 225 , 2020 WL 4726601 , at ¹³ (Aug. 14, 2020). In each case, we must give the statute in question a reasonable interpretation, “not one that is absurd, illogical, or incompatible with common sense.” Lockshin, 412 Md. at 276 . 23 Mr. Johnson argues that, in enacting HG § 10-708, the General Assembly evinced its intent not to authorize the Department to involuntarily medicate individuals for the purpose of restoring them to competency to stand trial.10 Mr. Johnson primarily reaches this conclusion through analysis of the language of HG §§ 10-708(g)(3)(i) and (ii).

These subsections allow a clinical review panel to approve involuntary medication of an individual if the panel determines (among other things) that, without the medication, the individual is at substantial risk of continued hospitalization due to remaining seriously mentally ill with no significant relief of, or for a significantly longer period of time with, the mental health 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.

HG §§ 10-708(g)(3)(i) & (ii). Although Mr. Johnson acknowledges that §§ 10-708(g)(3)(i)(2) and (ii)(2) both contemplate the Department may seek to involuntarily medicate a person who is committed to a hospital following a finding of IST, he argues that §§ 10-708(g)(3)(i)(2) and (ii)(2) permit the Department to involuntarily medicate such a person only if he or she is found to 10 In Allmond, we did not consider the argument Mr. Johnson presents to us concerning the General Assembly’s intent in enacting HG § 10-708. Thus, while Allmond stands for the proposition that § 10-708 may be applied to restore an individual to competency without violating the individual’s right to substantive due process, it does not necessarily follow that the General Assembly intends for the statute to apply to such a situation. Similarly, Allmond does not dispose of Mr. Johnson’s arguments concerning separation of powers and procedural due process. 24 be presently dangerous in the facility.

Mr. Johnson reaches this conclusion by focusing on the statutory language that directs the Department or an ALJ to consider “the mental illness symptoms that … resulted in the individual being committed under this title or Title 3 of the Criminal Procedure Article.” HG §§ 10-708(g)(3)(i)(2) and (ii)(2) (emphasis added). As Mr. Johnson points out, commitment under Title 3 (or under pertinent provisions elsewhere in Title 10 of the Health-General Article) only results when, in addition to any other required findings, the trier of fact finds that the person in question is presently a danger to self or the person of another (or, in some cases, the property of another). See HG § 10-632(e)(2)(iii) (civil commitment statute); CP § 3-106(c)(1)(i) (commitment after finding of IST); id. §§ 3-112(b), (g) (commitment after verdict of not criminally responsible). Thus, a criminal trial court may release or set bail for a defendant who is found to be IST but not dangerous as a result of a mental disorder.

Id. § 3-106(b). Mr. Johnson therefore reads HG §§ 10-708(g)(3)(i)(2) and (ii)(2) as authorizing involuntary medication of a committed IST defendant only if the Department or ALJ concludes that, without the prescribed medication, the person is at substantial risk for continued hospitalization due to the continuation of mental