Williams v. Wilzack

MURPHY, Chief Judge. This case involves a challenge to the constitutionality of Maryland statutes governing the forcible administration of antipsychotic medication to involuntarily committed mental patients in non-emergency situations. I. Maryland Code (1982,1988 Cum.Supp.), Subtitle 7 of Title 10 of the Health-General Article is entitled, “Rights of Mentally 111 Individuals in Facilities.” Section 10-701(c) of the subtitle provides that each mentally ill individual in a psychiatric facility is entitled to receive “appropriate humane treatment and services in a manner that restricts the individual’s personal liberty within a facility only to the extent necessary and consistent with the individual’s treatment needs and applicable legal requirements.” Among other “rights” provided to mentally ill individuals involuntarily confined in psychiatric institutions, this subsection requires that they receive treatment in accordance with an “individualized” treatment or rehabilitation plan. Section ⁴⁸⁷ 10-701(f) requires that mentally ill individuals in psychiatric facilities “be informed of the rights provided in this subtitle in language and terms that are appropriate to the individual’s condition and ability to understand.” Paragraph (2) of this subsection directs that the institution post notices in locations accessible to the individual and to visitors describing the rights of the mentally ill individual; and subsection (g) directs that the facility implement a complaint procedure “that affords an individual the ability to exercise the rights provided in this subtitle.” Section 10-702 directs that confined mentally ill individuals be afforded access to a telephone; to writing instruments, stationery and postage.

Section 10-703 directs that these persons are entitled to converse privately with and receive visits from lawyers, clergymen, or other visitors. Section 10-706 requires that the treatment or rehabilitation plan for the mentally ill individual be in writing, that the nature, content and objectives of the plans be communicated to the patient, that the patient be permitted to participate in the development of the plans, and that the patient be advised of the “nature and significant possible adverse effects of recommended treatment.” Section 10-706(e)(2)(iii) and (iv) further requires that the individual be informed of the “name, title, and role of personnel directly responsible for carrying out the treatment for the individual” and, when appropriate, “other available alternative treatments.” Section 10-708(a) authorizes a mentally ill individual in a psychiatric institution “to refuse medication used for the treatment of a mental disorder,” except in two instances: “(1) When the medication is provided on the order of a physician in an emergency where the individual presents a danger to the life or safety of the individual or others; or (2) In nonemergency situations, where the individual is hospitalized involuntarily or by order of a court and the medication is approved by a clinical review panel.” ⁴⁸⁸ The remaining provisions of § 10-708 outline the composition of the clinical review panel and the procedures to be followed in the panel’s decision whether to forcibly medicate a patient. Section 10-708(b) requires that the panel be comprised of (1) the clinical director of the facility, if a physician, or a physician designated by the clinical director; (2) a psychiatrist; and (3) a nonphysician mental health care provider. This subsection also provides that if a member of the panel is directly responsible for implementing the patient’s treatment plan, a different panel member shall be designated by the clinical director.

Subsection (c) of § 10-708 directs that the panel, in determining whether to approve the medication: “(i) Review the individual’s clinical record; (ii) Consult with facility personnel who are responsible for implementing the individual’s treatment plan; (iii) Consult with the individual regarding the reasons for refusing the medication; (iv) Review the individual’s capacity to make decisions concerning treatment; and (v) Review the potential consequences of requiring the individual to accept the medication and of withholding the medication from the individual.” Section 10-708(c)(2) also directs that the panel “may not approve the medication where there are alternative treatments that are acceptable to both the individual and facility personnel who are directly responsible for implementing the individual’s treatment plan.” Section 10-708(c)(3) prohibits the panel from approving the use of the medication for more than a sixty-day period and further provides that, after that period, if the patient refuses the medication, it may be continued only if again approved by the panel every sixty days.

II

Laquinn Williams is a patient at the Clifton T. Perkins Hospital Center, a psychiatric institution operated by the Maryland State Department of Health and Mental Hygiene ⁴⁸⁹ (DHMH). His diagnosis is schizophrenia: paranoid type. He was first committed to Perkins in October of 1986 for an evaluation of his competence to stand trial on criminal charges of second degree attempted rape and battery. After being found competent to stand trial, Williams pleaded and was subsequently adjudicated in the Circuit Court for Montgomery County as not criminally responsible under Code (1988 Cum.Supp.), § 12-108 of the Health-General Article.

That section provides that “[a] defendant is not criminally responsible for criminal conduct if, at the time of that conduct, the defendant, because of a mental disorder or mental retardation, lacks substantial capacity: (a) To appreciate the criminality of that conduct; or (b) To conform that conduct to the requirements of law.” For purposes of applying the provisions of this section, a “mental disorder” is defined in § 12-101 of the Article to mean “a behavioral or emotional illness that results from a psychiatric or neurological disorder. (2) ‘Mental disorder’ includes a mental illness that so substantially impairs the mental or emotional functioning of an individual as to make care or treatment necessary or advisable for the welfare of the individual or for the safety of the person or property of another.” As a result of the verdict that Williams was not criminally responsible for his criminal conduct, he was committed, pursuant to the provisions of § 12-lll(a) of the Health-General Article, to Springfield Hospital Center, a State psychiatric institution “for institutional, inpatient care or treatment.” Section 12-113 provides that an individual so committed may be released, conditionally or otherwise, only if the individual “would not be a danger, as a result of mental disorder or mental retardation, to self or to the person or property of others if discharged.” ⁴⁹⁰ In July, 1987, Williams’s treating psychiatrist, Dr. Abbas, prescribed Mellaril, an antipsychotic drug. Williams refused to take the medication, apparently based on his fear of its side effects and of its power to disrupt his thought processes. He claimed that the drug would interfere with the exercise of his Sunni Muslim religion, which required him to recite prayers from memory five times a day.

He also asserted that the drug would interfere with his ability to assist his attorney at a subsequent release hearing, as authorized by § 12-113 of the Health-General Article. Dr. Abbas requested a review of Williams’ decision to refuse the medication by a clinical review panel. The panel was convened on August 10, 1987; the case was presented to it by Williams’ treating psychiatrist, Dr. Abbas, and by two other members of the treatment team. Williams and his lawyer were present for that part of the panel hearing, at which Williams explained his reasons for refusing to take the drug.

The panel reviewed Williams’s treatment record. It described him as “moderately hostile and suspicious” and found that his mental illness prevented him from making a rational decision regarding medication. It also found that Mellaril was the least intrusive type of effective treatment and that without it Williams would likely regress and become more hostile. The panel unanimously determined that Williams should be required to take the medication notwithstanding his objections.

Williams was forcibly medicated from August 19 or 20, 1987 (the parties disagree about the exact date) until September 5,1987, when he expressed his intention to obtain an ex parte injunction against forcible medication. The State agreed at this time to temporarily discontinue forced medication and to convene a second clinical review panel. On September 15, 1987, a second panel was convened at Perkins. It consisted of the clinical director, a psychiatrist ⁴⁹¹ and a nurse. 1 A presentation was made by Dr. Ellen McDaniel, a psychiatrist privately engaged by Williams who had evaluated him during the time period between the two panel meetings.

Dr. McDaniel testified that Williams made a rational decision in refusing to take the drugs, that he need not be forcibly medicated, and that he could be effectively treated with less intrusive therapies. The second panel also unanimously recommended that Williams be medicated over his objection. It found that Williams’s symptoms precluded his ability to make rational treatment decisions, and that his “high degree of suspicion” would prevent him from profiting from any of the “talking therapies” recommended by Dr. McDaniel. The panel stated that Williams’s belief that staff members were “fabricating” issues about him, and his inability to relate to staff, made medication “the most appropriate type of intervention compatible with this patient’s well being.” The panel concluded that medication might improve Williams’s mental status and make him more amenable, in the future, to other types of therapy.

To withhold treatment, the panel said, “will lengthen the time of hospitalization, maintain the barrier to relating with others, and perhaps allow Mr. Williams to further disintegrate.” On September 16, 1987, Williams filed an action in the Circuit Court for Montgomery County, alleging that forcible administration of antipsychotic drugs under the procedures of § 10-708 violated his state and federal constitutional rights to privacy, due process, freedom of speech, thought, and religion. He sought preliminary and permanent injunctive relief to prohibit future forcible medication. He also requested compensatory and punitive damages. Pending decision on the merits of the case, the State agreed not to forcibly medicate Williams except in an emergency. 2 ⁴⁹² On April 22, 1988, Williams filed an amended complaint, adding an equal protection claim.

The State thereafter filed motions for summary judgment as to Williams’s constitutional and other claims. Williams filed a motion for partial summary judgment on the ground that § 10-708 on its face violates substantive and procedural due process and the equal protection guarantees of the Maryland Declaration of Rights and the United States Constitution. On July 26, 1988, the court (Beard, J.) denied Williams’s motion for partial summary judgment, holding that § 10-708 did not on its face violate Williams’s constitutional rights. The court granted the State’s motions for summary judgment, holding that it acted in compliance with § 10-708 and that its conduct under the statute did not violate any of Williams’s constitutional rights.

The court did not issue a written opinion. Williams appealed. We granted certiorari before decision by the Court of Special Appeals to consider the important issues raised in the case.

III

Williams argues that under both the State and Federal Constitutions, a competent person has a protected right to make his or her own treatment decisions. He does not challenge the state’s right to forcibly medicate an involuntarily committed psychiatric patient in an emergency situation, but contends that absent an emergency, a competent person may not be forced to take antipsychotic drugs. Given the dangerous side effects associated with these drugs, Williams maintains that their forcible administration impinges upon his first amendment rights; upon his fourteenth amendment liberty interest; and upon his right of privacy secured by the fourth, fifth, and fourteenth amend ⁴⁹³ ments. He argues that these rights cannot be abridged in the absence of a compelling state interest.

While conceding that the State has a parens patriae interest in caring for those who cannot care for themselves, Williams contends that this interest has no application unless the patient is adjudged incompetent. Nor is it sufficient to satisfy constitutional requirements, according to Williams, that the clinical review panel is required to “review the individual’s capacity to make decisions concerning treatment” as one statutory factor in making its decision. Williams points out that involuntary commitment under Maryland law is not tantamount to an adjudication of incompetency, and therefore does not warrant a presumption that the patient is incompetent. 3 Williams also argues that due process under the Federal Constitution, and Article 24 of the Maryland Declaration of Rights, requires a judicial proceeding to determine the patient’s competence before antipsychotic drugs may be forcibly administered. 4 This is so, he suggests, because among other reasons institutional employees have inherent conflicts of interest which limit their ability to render a fair and unbiased decision. He contends that § 10-708 is also defective because it fails to provide certain important rights to the involuntarily committed competent patient: the right to notice of the place and time of the panel meeting, the right to counsel at the meeting, the right to attend the meeting, the right to hear evidence and to question witnesses, the right to a written decision, and the right to appeal the panel’s determination. ⁴⁹⁴ The State argues that § 10-708 fully complies with the due process guarantees of the State and Federal Constitutions.

It contends that an adversarial judicial proceeding is not required to satisfy due process requirements as long as professional medical judgment is exercised in the decision to override the patient’s refusal of antipsychotic drugs. The State suggests that the judicial process does not offer any better protection against error than a decision by competent medical professionals. Moreover, it contends that § 10-708 is constitutional in all respects, whether or not the involuntarily committed patient has been adjudicated as legally incompetent. The State further contends that Article 24 of the Maryland Declaration of Rights and the fourteenth amendment of the Federal Constitution are in pari materia and therefore bear the same construction.

Consequently, it maintains that the professional judgment due process standard satisfies the requirements of Art. 24, and that § 10-708 does not violate Williams’s first amendment rights or deny him equal protection of the law.

IV

Under Maryland common law, “a physician, treating a mentally competent adult under non-emergency circumstances, cannot properly undertake to perform surgery or administer other therapy without the prior consent of his patient.” Sard v. Hardy, 281 Md. 432, 439 , 379 A.2d 1014 (1977). By enacting § 10-708, the General Assembly changed the common law by legislating a narrow exception to permit nonconsensual medication of a patient involuntarily committed by court order to a psychiatric facility when the medication is approved by a clinical review panel of health care professionals consistent with statutorily prescribed criteria. A number of courts have concluded that although the forcible administration of antipsychotic drugs to an involuntarily committed psychiatric patient implicates a constitu ⁴⁹⁵ tionally protected liberty interest in bodily integrity, due process considerations may be satisfied if professional medical judgment is exercised in making the determination to override the patient’s refusal to take the drug. See, e.g., United States v. Charters, 863 F.2d 302 (4th Cir.1988), cert. denied, — U.S. —, 110 S.Ct. 1317 , 108 L.Ed.2d 493 (1990); Dautremont v. Broadlawns Hospital, 827 F.2d 291 (8th Cir.1987); Johnson v. Silvers, 742 F.2d 823 (4th Cir. 1984); Rennie v. Klein, 720 F.2d 266 (3rd Cir.1983); Project Release v. Prevost, 722 F.2d 960 (2nd Cir.1983); Stensvad v. Reivitz, 601 F.Supp. 128 (W.D.Wis.1985); R.A.J. v. Miller, 590 F.Supp. 1319 (N.D.Texas 1984); United States v. Leatherman, 580 F.Supp. 977 (D.D.C.1983); Large v. Superior Court, 148 Ariz. 229 , 714 P.2d 399 (1986).

In so holding, these courts placed reliance upon the Supreme Court’s decision in Youngberg v. Romeo, 457 U.S. 307 , 102 S.Ct. 2452 , 73 L.Ed.2d 28 , decided on June 18, 1982. The question presented in Youngberg was whether an individual involuntarily committed to a state institution for the mentally retarded had substantive rights under the due process clause of the fourteenth amendment to (1) safe conditions of confinement, (2) freedom from bodily restraints, and (3) training necessary to secure these interests. In an action under 42 U.S.C. § 1983 (1979), damages were claimed on behalf of the patient for breach of these alleged constitutional rights. The Court held that patients involuntarily committed to a state mental institution possess a liberty interest protected by the due process clause in safe conditions of confinement, freedom from unreasonable bodily restraints, and minimally adequate training to insure these protected rights.

The Court said that these liberty interests were not absolute but were subject to operational necessities of the institution. In determining whether a substantive right protected by the due process clause has been violated, the Court said it was necessary to balance the liberty of the individual and the demands of an organized society. 457 U.S. at 320 , 102 S.Ct. at 2460 . ⁴⁹⁶ In striking this balance, the Court said that its cases have “weighed the individual’s interest in liberty against the State’s asserted reasons for restraining individual liberty.” Id. It then focused upon “the proper standard for determining whether a State adequately has protected the rights of the involuntarily committed mentally retarded.” Id. at 321 , 102 S.Ct. at 2461 . As to this, the Court, in considering the legitimate interest of the State and the rights of the involuntarily committed patient to reasonable conditions of safety and freedom from unreasonable restraints, concluded that courts are only required to make certain that professional judgment in fact was exercised.

Id. at 321 , 102 S.Ct. at 2461 . It was not for courts, it said, to specify which of several professionally acceptable choices should have been made. In recognizing a due process right to minimally adequate training to insure safety and to facilitate the patient’s ability to function free from bodily restraints, it required that the right be “reasonable in light of respondent’s liberty interests in safety and freedom from unreasonable restraint.” Id. at 322 , 102 S.Ct. at 2461 . In determining what was “reasonable,” the Court directed that judges “must show deference to the judgment exercised by a qualified professional.” Id. at 322 , 102 S.Ct. at 2461 .

In so circumscribing judicial review, the Court quoted from Parham v. J.R., 442 U.S. 584, 608, n. 16 , 99 S.Ct. 2493 , 61 L.Ed.2d 101 (1979) that courts, when reviewing medical decisions made by professionals, must “ ‘design procedures that protect the rights of the individual without unduly burdening the legitimate efforts, of the states to deal with difficult social problems.’ ” Id. at 322, n. 29, 102 S.Ct. at 2461, n. 29 . In this respect, the Court said that “there certainly is no reason to think judges or juries are better qualified than appropriate professionals in making such decisions.” Id. at 322-23 , 102 S.Ct. at 2462 . In these circumstances, it announced that decisions made by a professional are presumptively valid, to be overruled “only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or ⁴⁹⁷ standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.” Id. at 323 , 102 S.Ct. at 2462 . The Court concluded that involuntarily committed patients could be restrained to the extent professional judgment deemed necessary to insure safety or to provide needed training.

Id. at 324 , 102 S.Ct., at 2462 . In Mills v. Rogers, 457 U.S. 291 , 102 S.Ct. 2442 , 73 L.Ed.2d 16 , decided the same day as the Youngberg case, the question before the Supreme Court was “whether involuntarily committed mental patients have a constitutional right to refuse treatment with antipsychotic drugs,” 457 U.S. at 293, 102 S.Ct. at 2445, a question which the Court said “had both substantive and procedural aspects.” 5 Id. at 299, 102 S.Ct. at 2448. There, suit for money damages was filed against officials of a Massachusetts state hospital by mental patients who, during their period of institutionalization, had been forced to accept unwanted treatment with antipsychotic drugs. The Court in Mills “assumed” that the Constitution recognizes a liberty interest in avoiding an unwanted administration of antipsychotic drugs.

Id. at 299 , 102 S.Ct. at 2448. The substantive issue, it said, “involves a definition of that protected constitutional interest, as well as identification of the conditions under which competing state interests might outweigh it,” citing Youngberg, supra. The Court identified the procedural issue as concerning “the minimum procedures required by the Constitution for determining that the individual’s liberty interest actually is outweighed in a particular instance,” citing Parham, supra, 442 U.S. at 606 , 99 S.Ct. at 2506 , and Mathews v. Eldridge, 424 U.S. 319 , 96 S.Ct. 893 , 47 L.Ed.2d 18 (1976). The Court said that while, “[i]n theory a court might be able to define the scope of a patient’s federally protected liberty interest without refer ⁴⁹⁸ ence to state law,” both the substantive and procedural issues were “intertwined with questions of state law which, for purposes of determining actual rights and obligations, could not be avoided.” Id.

It explained: “Within our federal system the substantive rights provided by the Federal Constitution define only a minimum. State law may recognize liberty interests more extensive than those independently protected by the Federal Constitution. If so, the broader state protections would define the actual substantive rights possessed by a person living within that State. “Where a State creates liberty interests broader than those protected directly by the Federal Constitution, the procedures mandated to protect the federal substantive interests also might fail to determine the actual procedural rights and duties of persons within the State. Because state-created liberty interests are entitled to the protection of the federal Due Process Clause, the full scope of a patient’s due process rights may depend in part on the substantive liberty interests created by state as well as federal law.

Moreover, a State may confer procedural protections of liberty interests that extend beyond those minimally required by the Constitution of the United States. If a State does so, the minimal requirements of the Federal Constitution would not be controlling, and would not need to be identified in order to determine the legal rights and duties of persons within that State.” 457 U.S. at 300, 102 S.Ct. at 2448 (italics in original) (citations omitted). In view of these considerations, the Court declined to decide the issue presented to it because, after its grant of certiorari, the Supreme Judicial Court of Massachusetts in Guardianship of Roe, 383 Mass. 415 , 421 N.E.2d 40 (1981) held that the common law of Massachusetts, as well as the Federal Constitution, required that the liberty interest of a noninstitutionalized mental patient to refuse treatment with antipsychotic drugs was of such importance that it could be overcome only by “an overwhelming State interest.” 383 ⁴⁹⁹ Mass, at 434, 421 N.E.2d 40 . This was so, the Court held in Roe, even if the patient was adjudged incompetent in which event the individual was entitled to have “substituted” judgment exercised on his behalf and a judicial determination made before drugs could be administered in an non-emergency situation.

Because the Supreme Court was uncertain whether the state court in Roe recognized liberty interests greater than those minimally protected by the Federal Constitution, it remanded the case to determine the nature and scope of the protections afforded by state law. In Washington v. Harper, — U.S. —, 110 S.Ct. 1028 , 108 L.Ed.2d 178 , decided February 27, 1990, the question presented was whether, consistent with the protections afforded by the Due Process Clause of the Fourteenth Amendment, “a judicial hearing is required before the State may treat a mentally ill prisoner with antipsychotic drugs against his will.” — U.S. ——, ——, 110 S.Ct. 1028, 1032 , 108 L.Ed.2d 178 . The prisoner was confined to a special unit within the penal institution which treated inmates with serious mental disorders. The inmate refused to take anti-psychotic drugs which a psychiatrist deemed essential to his treatment.

A written state administrative policy governed the forcible administration of drugs to a prisoner against his will; it contained both substantive and procedural components. First, it provided that if a psychiatrist determined that a drug should be administered and the inmate did not consent, he could be involuntarily