IN RE: Kanuri Surgury QAWI

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Court of Appeal, First District, Division 1, California.

IN RE: Kanuri Surgury QAWI, on Habeas Corpus.

No. A093094.

Decided: July 24, 2001

First District Appellate Project, Matthew Zwerling, Renée E. Torres, for Petitioner and Appellant. Bill Lockyer, Attorney General, Pamela Smith-Steward, Chief Assistant Attorney General, Charlton G. Holland III, Senior Assistant Attorney General, Stephanie Wald, Supervising Deputy Attorney General, Angela Botelho, Deputy Attorney General, for Respondent.

We conclude that petitioner, as an adjudicated mentally disordered offender, has the right under Penal Code section 2972, subdivision (g), to refuse antipsychotic medication for his mental disorder, in the absence of a judicial determination of his incompetence to do so.1

STATEMENT OF FACTS AND PROCEDURAL HISTORY

In August of 1991, petitioner was found guilty of felony assault (Pen.Code, § 245, subd. (a)(1)), misdemeanor assault (§ 240), and two counts of misdemeanor battery (§ 242).   He was granted parole in July of 1993, arrested again that same month for other offenses and parole violation, granted parole in March of 1994, and arrested for felony stalking in May of 1994.

During petitioner's incarceration in the California Medical Facility at Vacaville, beginning in July of 1995, he was evaluated for referral as a mentally disordered offender pursuant to section 2962.   He was found to meet all the criteria required for placement and treatment as a mentally disordered offender, based upon a diagnosis of paranoid schizophrenia or paranoid personality disorder.2 Treatment of petitioner as an involuntary mental health patient with antipsychotic medication commenced in July of 1995.3  Psychiatric reports consistently indicated that without medication petitioner lapsed into decompensated states in which he became hostile, assaultive and paranoid.   He has engaged in several incidents of paranoid and violent behavior while incarcerated in mental health facilities.

Petitioner's mentally disordered offender commitment has been extended annually since 1995, most recently on January 16, 2001;  his current commitment at Napa State Hospital terminates on February 17, 2002.   He has consistently denied that he suffers from a mental disorder and declined to fully cooperate in his treatment.   Although petitioner has suffered some adverse side effects from the antipsychotic medication he continues to receive, respondent, the Medical Director at Napa State Hospital, has offered the opinion that the medication is nevertheless absolutely necessary to achieve remission of petitioner's psychoses.

In the present petition for writ of habeas corpus, petitioner complains that he has been involuntarily compelled to take antipsychotic medication in violation of his statutory and due process rights.   We directed respondent to show cause why petitioner is not entitled to a hearing to determine his competence to refuse to take antipsychotic medication pursuant to section 2972, subdivision (g), and Welfare and Institutions Code section 5325, et seq.4

DISCUSSION

Petitioner asserts that the right to refuse antipsychotic medication has been granted to him by subdivision (g) of section 2972, which specifies, in pertinent part:  “Except as provided in this subdivision, the person committed shall be considered to be an involuntary mental health patient and he or she shall be entitled to those rights set forth in Article 7 (commencing with Section 5325) of Chapter 2 of Part 1 of Division 5 of the Welfare and Institutions Code.” 5 Section 5325.2 of the Welfare and Institutions Code, which is part of the Lanterman-Petris-Short (LPS) Act (§ 5000 et seq.) in article 7, in turn provides:  “Any person who is subject to detention pursuant to Section 5150, 5250, 5260, or 5270.15 shall have the right to refuse treatment with antipsychotic medication subject to provisions set forth in this chapter.”  (Italics added.)   Welfare and Institutions Code section 5332 directs that antipsychotic medication “may be administered to any person subject to detention pursuant to Section 5150, 5250, 5260, or 5270.15, if that person does not refuse that medication following disclosure of the right to refuse medication as well as information required to be given to persons pursuant to subdivision (c) of Section 5152 and subdivision (b) of Section 5213.[¶] (b) If any person subject to detention pursuant to Section 5150, 5250, 5260, or 5270.15, and for whom antipsychotic medication has been prescribed, orally refuses or gives other indication of refusal of treatment with that medication, the medication shall only be administered when treatment staff have considered and determined that treatment alternatives to involuntary medication are unlikely to meet the needs of the patient, and upon a determination of that person's incapacity to refuse the treatment, in a hearing held for that purpose.”   Petitioner claims that pursuant to these provisions he is “entitled to judicial proceedings at which a judicial determination of the need for, and competence to refuse, medications can be made,” before he may be compelled to take antipsychotic medication against his will.

Respondent counters that the provisions in Welfare and Institutions Code sections 5325.2 and 5332, which were added to the LPS Act in 1991,6 are expressly limited in application to temporary commitments of gravely disabled persons detained pursuant to Welfare and Institutions Code sections 5150, 5250, 5260, or 5270.15, without a prior judicial “adjudication of their mental health status.”   Respondent points out that petitioner was not certified under the LPS Act:  he was neither “detained under any of its referenced short term commitment statutes and procedures,” nor is encompassed within the statutory definition of “gravely disabled.” Therefore, maintains respondent, petitioner fails to “meet the criteria for section 5332 relief.”   Instead, respondent's argument concludes, as a person committed under the MDO Act, “where determinations of severe mental disorder and substantial physical dangerousness to others have already been established both civilly and criminally subject to annual judicial review under the highest standards of due process and proof,” petitioner “was certified for placement and treatment under an entirely different set of statutory standards and requirements.”

 We must follow established rules of statutory interpretation in our determination of the rights granted to mentally disordered offenders by section 2972, subdivision (g).  “ ‘We begin with the fundamental rule that our primary task in construing a statute is to determine the Legislature's intent.’  [Citation.]  We must begin with the words of the statute.”  (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 826, 4 Cal.Rptr.2d 615, 823 P.2d 1216;  see also Heater v. Southwood Psychiatric Center (1996) 42 Cal.App.4th 1068, 1084, 49 Cal.Rptr.2d 880.)  “Because statutory language generally provides the most reliable indicator of that intent (Hsu v. Abbara (1995) 9 Cal.4th 863, 871 [39 Cal.Rptr.2d 824, 891 P.2d 804] ), we turn to the words themselves, giving them their ‘usual and ordinary meanings' and construing them in context.  (People v. Loeun [ (1997) ] 17 Cal.4th [1,] 9 [69 Cal.Rptr.2d 776, 947 P.2d 1313] ).  ‘ “If there is no ambiguity in the language of the statute, ‘․ the Legislature is presumed to have meant what it said, and the plain meaning of the statute governs.’  ” ' (Ibid.)” (People v. Lawrence (2000) 24 Cal.4th 219, 230-231, 99 Cal.Rptr.2d 570, 6 P.3d 228.) The “ ‘statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible.’  (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387 [241 Cal.Rptr. 67, 743 P.2d 1323].)”  (Masonite Corp. v. Superior Court (1994) 25 Cal.App.4th 1045, 1055, 31 Cal.Rptr.2d 173.)   The issue of statutory interpretation is one of law which we review de novo.   (Id., at p. 1050, 31 Cal.Rptr.2d 173.)

 Respondent's argument that the rights articulated in article 7 of the LPS Act do not extend to persons committed under the MDO Act, is based upon the provisions of referent Welfare and Institutions Code sections 5325.2 and 5332 in article 7 of the LPS Act, in which the right to refuse treatment with antipsychotic medication is expressly granted to “[a]ny person who is subject to detention pursuant to Section 5150, 5250, 5260, or 5270.15,” which of course does not include petitioner.   The flaw in respondent's reasoning is that it ignores the very clear language of section 2972, subdivision (g), which specifically affords to involuntary mental health patients in MDO Act proceedings all of the “rights set forth in Article 7,” one of which is to “refuse treatment with antipsychotic medication.”   A person committed as a mentally disordered offender “is considered an involuntary mental health patient who is entitled to all the rights accorded to civil committees under the Lanterman-Petris-Short (LPS) Act.” (People v. Superior Court (Myers) (1996) 50 Cal.App.4th 826, 832, 58 Cal.Rptr.2d 32.)   Thus, section 2972, subdivision (g), treats involuntary mental health patients committed under the MDO Act as persons “subject to detention pursuant to Section 5150, 5250, 5260, or 5270.15,” at least for purposes of defining the rights they retain in the proceedings.   Reading the statutory schemes together and following the plain language of section 2972, subdivision (g), we conclude that the Legislature has given a person committed as a mentally disordered offender the same right to refuse antipsychotic medication as a person involuntarily detained under sections 5150, 5250, 5260, and 5270.15 of the LPS Act.

 In reaching this conclusion we accept respondent's characterization of the distinction between the summary, more transitory LPS commitment, and the more expansive procedural rights to a hearing and prior determination of a severe mental disorder that must precede the longer commitment under the MDO Act. We also recognize that persons involuntarily committed under the LPS Act without any prior judicial adjudication may therefore have an even greater theoretical need than mentally disordered offenders for a hearing to determine competence to refuse treatment with antipsychotic medication.   Nevertheless, with the enactment of subdivision (g) of section 2972, the Legislature has very clearly and specifically extended to both classes of committed persons the right articulated in Welfare and Institutions Code sections 5325.2 and 5332 to decline medication absent a finding of “incapacity to refuse the treatment, in a hearing held for that purpose.”   Even if those committed under the MDO Act may not have a comparable need for a hearing on the issue of competence to refuse medication, section 2972, subdivision (g), has granted the right to them nonetheless.   And while we must refrain from considering the wisdom of the Legislature in so doing,7 we think that the right to a pre-commitment hearing to determine the existence of the statutory criteria for involuntary treatment under the MDO Act does not consequentially dispense with the necessity for a hearing on the separate issue of capacity to refuse antipsychotic medication.   A person confined due to a mental disorder is not for that reason also deemed incompetent to refuse medication.  (See Welf. & Inst.Code, §§ 5326.5, subd. (d), 5331;  Riese v. St. Mary's Hospital & Medical Center, supra, 209 Cal.App.3d at p. 1315, 271 Cal.Rptr. 199.)   The fact that a person has been found following a hearing to meet the criteria for commitment as a mentally disordered offender is not the equivalent of a finding of incapacity to refuse treatment with antipsychotic medication.

 Recently, our high court definitively reaffirmed the established principle “that the state constitutional right of privacy generally guarantees an individual's right to consent to, or to refuse to consent to, medical treatment or medication․” (American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 336, 66 Cal.Rptr.2d 210, 940 P.2d 797;  see also Lackner v. Department of Health Services (1994) 29 Cal.App.4th 1760, 1764, fn. 6, 35 Cal.Rptr.2d 482.) “[A] competent, informed adult, in the exercise of self-determination and control of bodily integrity, has the right to direct the withholding or withdrawal of life-sustaining medical treatment, even at the risk of death, which ordinarily outweighs any countervailing state interest.   The right does not depend upon the nature of the treatment refused or withdrawn;  nor is it reserved to those suffering from terminal conditions.   Once a patient has declined further medical intervention, the physician's duty to provide such care ceases.”  (Thor v. Superior Court (1993) 5 Cal.4th 725, 744, 21 Cal.Rptr.2d 357, 855 P.2d 375.)   Under the “informed consent” doctrine, “[w]hile the physician has the professional and ethical responsibility to provide the medical evaluation upon which informed consent is predicated, the patient still retains the sole prerogative to make the subjective treatment decision based upon an understanding of the circumstances.  [Citations.]  Accordingly, the right to refuse medical treatment is equally ‘basic and fundamental’ and integral to the concept of informed consent.”  (Id., at pp. 735-736, 21 Cal.Rptr.2d 357, 855 P.2d 375, fn. omitted.)   The court in Thor v. Superior Court, supra, at page 745, 21 Cal.Rptr.2d 357, 855 P.2d 375, decided that a competent state prison inmate, who under section 2600 “ ‘may ․ be deprived of such rights, and only such rights, as is necessary in order to provide for the reasonable security of the institution in which he is confined and for the reasonable protection of the public,’ ” still retains the “fundamental right of self-determination in medical decisions” of a magnitude that the prison “may not force him to accept unwanted treatment or care” in the absence of “evidence that allowing him to do so undermines prison integrity or endangers the public.”  (Fn. omitted.) 8

Even before the enactment of section 2972, subdivision (g), and the addition of Welfare and Institutions Code sections 5325.2 and 5332 to the LPS Act, California law accepted the fundamental right of involuntary mental health patients to refuse medication.   The LPS Act “scrupulously protected” the “rights of involuntarily detained mentally disordered people in California․” (Riese v. St. Mary's Hospital & Medical Center, supra, 209 Cal.App.3d at p. 1312, 271 Cal.Rptr. 199.)   In Keyhea v. Rushen (1986) 178 Cal.App.3d 526, 223 Cal.Rptr. 746, the court determined that the state violated section 2600 by subjecting prisoners to long-term involuntary medication without a judicial determination of competency, the assistance of counsel, a right to personal appearance, and adherence to procedural requirements delineated in the LPS Act.9 The court concluded that “state prisoners, like nonprisoners under the LPS statutory scheme, are entitled to a judicial determination of their competency to refuse treatment before they can be subjected to long-term involuntary psychotropic medication.   Mental health professionals and prison administrators may find this requirement cumbersome, but this is a price of life in a free society.   Forced drugging is one of the earmarks of the gulag.   It should be permitted in state institutions only after adherence to stringent substantive and procedural safeguards.”  (Keyhea v. Rushen, supra, at p. 542, 223 Cal.Rptr. 746.)   The LPS Act was found in Keyhea to provide “the sole mechanism for involuntary administration of long-term psychotropic medication, and also requires a court determination of incompetency.”  (Id., at p. 541, 223 Cal.Rptr. 746.)

The specific right of LPS patients to refuse antipsychotic medication was also recognized in Riese v. St. Mary's Hospital & Medical Center, supra, 209 Cal.App.3d at page 1316, 271 Cal.Rptr. 199, before it was explicitly granted in Welfare and Institutions Code sections 5325.2 and 5332.10  The court declared:  “The right to refuse treatment with these drugs clearly falls within the recognized right to refuse medical treatment.  (See Keyhea v. Rushen, supra, 178 Cal.App.3d at p. 540, 223 Cal.Rptr. 746.)   Because this right is among those ‘guaranteed all other persons by the ․ Constitution and laws of the State of California’ (§ 5325.1), it cannot be denied those confined under LPS absent a specific statutory limitation.”   (Riese v. St. Mary's Hospital & Medical Center, supra, at p. 1318, 271 Cal.Rptr. 199.)   The court therefore held that “[u]nless the incompetence of a person refusing drug treatment has been judicially established, ‘it is the individual who must have the final say in respect to decisions regarding his medical treatment in order to insure that the greatest possible protection is accorded his autonomy and freedom from unwanted interference with the furtherance of his own desires.’  [Citation.]  The Legislature has made it eminently clear that this right does not disappear upon involuntary commitment.”  (Id., at p. 1324, 271 Cal.Rptr. 199;  see also In re Locks (2000) 79 Cal.App.4th 890, 894-895, 94 Cal.Rptr.2d 495.)

The extension of the right to refuse antipsychotic medication to mentally disordered offender patients does not contravene the purpose of the MDO Act. “[A]s set forth in section 2960:  ‘The Legislature finds that there are prisoners who have a treatable, severe mental disorder that was one of the causes of, or was an aggravating factor in the commission of the crime for which they were incarcerated.   Secondly, the Legislature finds that if the severe mental disorders of those prisoners are not in remission or cannot be kept in remission at the time of their parole or upon termination of parole, there is a danger to society, and the state has a compelling interest in protecting the public.   Thirdly, the Legislature finds that in order to protect the public from those persons it is necessary to provide mental health treatment until the severe mental disorder which was one of the causes of or was an aggravating factor in the person's prior criminal behavior is in remission and can be kept in remission.’ (§ 2960.)”  (People v. Williams, supra, 77 Cal.App.4th at p. 449, 92 Cal.Rptr.2d 1.)   The protection of the public is not compromised by permitting mentally disordered offender patients to refuse medication unless they have been adjudicated incompetent to do so or the integrity of the institution is undermined.   The failure of a mentally disordered offender to take antipsychotic medication may prevent proper treatment and remission of the disorder, but will not present a danger to the public when the MDO Act authorizes extension of the commitment of those who continue to represent a substantial danger of physical harm to others.

Thus, the court in People v. Kirkland (1994) 24 Cal.App.4th 891, 29 Cal.Rptr.2d 863 concluded that those mentally disordered offenders who exercise their recognized rights under the MDO Act to refuse treatment with medication, remain subject to commitment and treatment proceedings under sections 2970 and 2972, even if they are imprisoned after refusing to accept treatment as a condition of parole or after violating parole.   The court observed that any other result “leads to absurdities.   Prison officials cannot force a prisoner to undergo medical treatment involuntarily if the prisoner is competent to refuse treatment, unless treatment is required by prison security or a similar countervailing state interest.  [Citation.]  Specifically, prison officials cannot submit a prisoner to long-term involuntary treatment with antipsychotic drugs unless it is found, in a judicial proceeding, that, among other things, ‘․ the prisoner is incompetent to refuse medication.’  [Citations.]”  (People v. Kirkland, supra, at pp. 907-908, 29 Cal.Rptr.2d 863.)

 Respondent insists that “the affirmative obligation placed on the treating facility under the MDO Act to treat the underlying causes of petitioner's mental disorder,” pursuant to section 2972, subdivision (f), “requires the administration of antipsychotic medication under applicable community standards.”  (See also People v. Merfeld (1997) 57 Cal.App.4th 1440, 1444, 67 Cal.Rptr.2d 759.)   While we agree with the general proposition that section 2972, subdivision (f), mandates treatment of the committed person's mental disorder, the patient's “right to be free from nonconsensual invasions of bodily integrity” is granted preeminence over the duty to provide medical care.  (Thor v. Superior Court, supra, 5 Cal.4th at p. 738, 21 Cal.Rptr.2d 357, 855 P.2d 375.)   The “right to refuse treatment is independent of the state's obligation to adequately treat the mentally ill.”   (In re Locks, supra, 79 Cal.App.4th at p. 896, 94 Cal.Rptr.2d 495.)   Hence, “as a general proposition ․ a physician has no duty to treat an individual who declines medical intervention after ‘reasonable disclosure of the available choices with respect to proposed therapy [including nontreatment] and of the dangers inherently and potentially involved in each.’  [Citation.]  The competent adult patient's ‘informed refusal’ supersedes and discharges the obligation to render further treatment.”  (Thor v. Superior Court, supra, at p. 738, 21 Cal.Rptr.2d 357, 855 P.2d 375.)   Waiver of treatment releases the duty to treat the committed patient, although the commitment provisions of the MDO Act may continue to be imposed on the mentally disordered offender.   (Id., at pp. 745-746, 21 Cal.Rptr.2d 357, 855 P.2d 375;  People v. Kirkland, supra, 24 Cal.App.4th at pp. 907-908, 29 Cal.Rptr.2d 863.)

Finally, we do not find the present case “governed” by the recent decision in In re Locks, supra, 79 Cal.App.4th 890, 94 Cal.Rptr.2d 495, as respondent suggests.   To the contrary, Locks is not even persuasive here.   In Locks, the court decided that a person committed to a state mental hospital for treatment following a judicial hearing under section 1026 in which he was found not guilty by reason of insanity, was “not entitled to a hearing to determine his competence to refuse treatment” with antipsychotic medication.  (79 Cal.App.4th at p. 897, 94 Cal.Rptr.2d 495.)   The court acknowledged that state prison inmates and those committed under the LPS Act are entitled to refuse antipsychotic medication absent a finding they are gravely disabled, incompetent, or a danger to others.  (Id., at pp. 896-897, 94 Cal.Rptr.2d 495.)   Locks was committed by reason of his insanity determined in a criminal rather than civil proceeding after a judicial hearing under section 1026, however, and thus presumed to be insane and a danger to others during the course of his confinement.  (Ibid.) Therefore, Locks was “unlike the patients in Riese or the prisoners in Keyhea,” and denied a hearing on his competence.  (Id., at p. 897, 94 Cal.Rptr.2d 495.)

 Petitioner is like the LPS patients in Riese.   Unlike Locks or others confined under section 1026 following voluntary entry of a plea and a finding of insanity,11 as an involuntarily committed mentally disordered offender, petitioner has been expressly granted by section 2972, subdivision (g), all the rights and procedural safeguards specified in article 7 of the LPS Act. A person committed under section 1026 is also presumed to be insane and incompetent.  (In re Locks, supra, 79 Cal.App.4th at pp. 896-897, 94 Cal.Rptr.2d 495;  In re Zanetti (1949) 34 Cal.2d 136, 138, 208 P.2d 657;  In re Perkins (1958) 165 Cal.App.2d 73, 76, 331 P.2d 712.)   Petitioner, in contrast, is not presumed to be incompetent because he has been evaluated and treated for a mental disorder under the MDO Act;  he cannot be deemed incapable of refusal to take medication by virtue of his diagnosis;  he is entitled to a judicial determination of competency to refuse treatment before he can be subjected to long-term involuntary antipsychotic medication.   (Welf. & Inst.Code, §§ 5325.2, 5326.5, 5331, 5332;  Department of Corrections v. Office of Admin. Hearings, supra, 53 Cal.App.4th at p. 785, 61 Cal.Rptr.2d 903.)

We therefore follow the plain language of section 2972, subdivision (g), while still promoting the Legislative intent underlying the statutory scheme.   “While it is true ‘[c]ourts may, of course, disregard even plain language which leads to absurd results or contravenes clear evidence of a contrary legislative intent’ (Ornelas v. Randolph (1993) 4 Cal.4th 1095, 1105 [17 Cal.Rptr.2d 594, 847 P.2d 560] ), neither situation obtains here.  ‘The statute, in short, may be read to mean precisely what it says.’  (Ibid.)” (Heater v. Southwood Psychiatric Center, supra, 42 Cal.App.4th at p. 1085, 49 Cal.Rptr.2d 880.)

DISPOSITION

Accordingly, respondent, Medical Director of Napa State Hospital, is directed to immediately refrain from administering psychotropic drugs to petitioner absent a judicial determination of his lack of capacity to refuse the treatment.   In all other respects, the petition for writ of habeas corpus is denied.

FOOTNOTES

1.   All further statutory references are to the Penal Code unless otherwise indicated.

2.   Under the Mentally Disordered Offenders Act (§§ 2960-2981;  hereafter MDO Act), “a prison inmate who (1) has a severe mental disorder, not in remission or unable to be kept in remission without treatment, which was a cause of or factor in his criminal behavior, and (2) as a result of the mental disorder poses a substantial danger of physical harm to others, may be committed as an inpatient to a state mental hospital or ordered as a condition of parole to submit to mental health treatment as an outpatient. (§§ 2962, subds.(a), (b) & (d)(1), 2964, subd. (a).)  [¶] Upon discharge of the prisoner's parole, a superior court may order the prisoner held ‘for continued involuntary treatment for one year’ upon a district attorney's petition, supported by affidavits specifying the prisoner was continuously provided mental health treatment, and alleging ‘that the prisoner has a severe mental disorder, that the severe mental disorder is not in remission or cannot be kept in remission if the person's treatment is not continued, and that, by reason of his or her severe mental disorder, the prisoner represents a substantial danger of physical harm to others.’ (§ 2970.)   At trial on the petition, before judge or jury, the People have the burden of proof beyond a reasonable doubt. (§ 2972, subds.(a)-(c).)   The district attorney may petition for the person to be recommitted from year to year. (§ 2972, subd. (e).)”  (Zachary v. Superior Court (1997) 57 Cal.App.4th 1026, 1031, 67 Cal.Rptr.2d 532;  see also People v. Williams (1999) 77 Cal.App.4th 436, 444-445, 92 Cal.Rptr.2d 1, fn. omitted.)

3.   “Antipsychotic or, as they are sometimes called, psychotropic or neuroleptic drugs are ‘customarily used for the treatment of symptoms of psychoses and other severe mental and emotional disorders.’ ( [former] Cal. Admin.   Code, tit. 9, § 856.)   The drugs benefit many patients by minimizing or eliminating psychotic symptoms (Keyhea v. Rushen (1986) 178 Cal.App.3d 526, 531 [223 Cal.Rptr. 746] review den.   July 10, 1986;  Gelman, Mental Hospital Drugs, Professionalism, and the Constitution (1984) 72 Geo.L.J. 1725, 1741), although not all patients are helped by the drugs and some improve without them (Hollister, Psychiatric Disorders (1980) Principles and Practice of Clinical Pharmacology and Therapeutics, p. 1076;  Jennings & Schultz, Psychopharmacologic Treatment of Schizophrenia:  Developing a Dosing Strategy (1986) 21 Hosp.Formul. 332), and there is no means to accurately predict how a patient will react to a particular drug.  (Kemna, Current Status of Institutionalized Mental Health Patients' Right to Refuse Psychotropic Drugs (1985) 6 J. Legal Med. 107;  Plotkin, Limiting the Therapeutic Orgy:  Mental Patients' Right to Refuse Treatment (1977) 72 Nw.U.L.Rev. 461, 474-475.)”  (Riese v. St. Mary's Hospital & Medical Center (1987) 209 Cal.App.3d 1303, 1310, 271 Cal.Rptr. 199.)

4.   Petitioner also seeks immediate release, raising a number of other claims.   He has failed, however, to establish a prima facie case in support of them.  (People v. Bloyd (1987) 43 Cal.3d 333, 362-364, 233 Cal.Rptr. 368, 729 P.2d 802;  In re Hochberg (1970) 2 Cal.3d 870, 873-874, 87 Cal.Rptr. 681, 471 P.2d 1;  In re Swain (1949) 34 Cal.2d 300, 304, 209 P.2d 793.)

5.   The remainder of subdivision (g) adds:  “Commencing January 1, 1986, the State Department of Mental Health may adopt regulations to modify those rights as is necessary in order to provide for the reasonable security of the inpatient facility in which the patient is being held.   This subdivision and the regulations adopted pursuant thereto shall become operative on January 1, 1987, except that regulations may be adopted prior to that date.”   No such regulations have been adopted.

6.   See Stats.1991, ch. 681, §§ 2, 3, pp.   3078-3079 (Sen. Bill No. 665 (1991-1992 Reg. Sess.).)

7.   “[W]e follow the Legislature's intent, as exhibited by the plain meaning of the actual words of the law, ‘ “ ‘whatever may be thought of the wisdom, expediency, or policy of the act.’  ” ' (People v. Weidert (1985) 39 Cal.3d 836, 843 [218 Cal.Rptr. 57, 705 P.2d 380], quoting Woodmansee v. Lowery (1959) 167 Cal.App.2d 645, 652 [334 P.2d 991].)''   (California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 632, 59 Cal.Rptr.2d 671, 927 P.2d 1175.)

8.   In Washington v. Harper (1990) 494 U.S. 210, 110 S.Ct. 1028, 108 L.Ed.2d 178, the United States Supreme Court similarly held that prison officials may administer unwanted psychotropic drugs only when an inmate's mental disability poses a threat to himself or prison safety.   The court decided that a procedure in which a psychiatrist ordered or approved the medication and the inmate was entitled to a hearing before a special committee consisting of a psychiatrist, a psychologist, and the associate superintendent of the treating facility, none of whom could be, at the time of the hearing, involved in the inmate's treatment or diagnosis, comported with the demands of the due process clause.  (494 U.S. at pp. 215-216, 221-222, 110 S.Ct. 1028.)   The extent of a prisoner's right under the due process clause to avoid the unwanted administration of antipsychotic drugs was defined by the court in the context of the inmate's confinement, and the proper standard for determining the validity of a prison regulation claimed to infringe on an inmate's constitutional rights was stated as whether the regulation is “ ‘reasonably related to legitimate penological interests.’  [Citation.]”  (Id., at pp. 222-223, 110 S.Ct. 1028.)   The court held that “the Due Process Clause permits the State to treat a prison inmate who has a serious mental illness with antipsychotic drugs against his will, if the inmate is dangerous to himself or others and the treatment is in the inmate's medical interest.”  (Id., at p. 227, 110 S.Ct. 1028.)   It also held that “an inmate's interests are adequately protected, and perhaps better served, by allowing the decision to medicate to be made by medical professionals rather than a judge.”  (Id., at p. 231, 110 S.Ct. 1028.)The California Legislature has enacted procedural safeguards to determine competency to refuse involuntary antipsychotic medication that exceed federal due process standards.  (See Department of Corrections v. Office of Admin. Hearings (1997) 53 Cal.App.4th 780, 788, 61 Cal.Rptr.2d 903.)

9.   At the time of the Keyhea decision, section 2600 provided that prisoners may be deprived of only such civil rights as reasonably necessary for prison security or public safety.  (178 Cal.App.3d 526, 533, 223 Cal.Rptr. 746.)   Penal Code section 2600 was amended in 1994 to add the Keyhea injunction, which provides that a prisoner in a state prison “may during that period of confinement be deprived of such rights, and only such rights, as is reasonably related to legitimate penological interests.  [¶] Nothing in this section shall be construed to permit the involuntary administration of psychotropic medication unless the process specified in the permanent injunction, dated October 31, 1986, in the matter of Keyhea v. Rushen, 178 Cal.App.3d 526, 223 Cal.Rptr. 746, has been followed.   The judicial hearing for the authorization for the involuntary administration of psychotropic medication provided for in Part III of the injunction shall be conducted by an administrative law judge․”

10.   In the Riese opinion, the court observed that the LPS Act then enumerated the rights of LPS patients:  “ ‘[t]o refuse convulsive treatment’ (such as electroconvulsive and insulin coma treatment) (§ 5325, subd. (f)) and ‘[t]o refuse psychosurgery.’ (§ 5325, subd. (g).)  Section 5325.1 generally states that ‘[p]ersons with mental illness have the same legal rights and responsibilities guaranteed all other persons by the Federal Constitution and laws and the Constitution and laws of the State of California unless specifically limited by federal or state law or regulations' and then sets out a nonexclusive list of rights including ‘[a] right to dignity, privacy, and humane care’ (§ 5325.1, subd. (b)) and ‘[a] right to be free from harm, including unnecessary or excessive physical restraint, isolation, medication, abuse, or neglect.   Medication shall not be used as punishment, for the convenience of staff, as a substitute for program, or in quantities that interfere with the treatment program.’ (§ 5325.1, subd. (c);  see, §§ 5005, 5327.)   Involuntary patients who are receiving medications as a result of their mental illness must be given, as soon as possible after detention, written and oral information about the probable effects and possible side effects of the medication, and must be told the reason the medication is being given or recommended, the likelihood of improving or not improving without the medications, reasonable alternative treatments available, and information concerning the name, dosage and frequency of medication. (§ 5152, subd. (c).)”  (209 Cal.App.3d at pp. 1313-1315, 271 Cal.Rptr. 199, fns. omitted.)The court also noted:  “It is one of the cardinal principles of LPS that mental patients may not be presumed incompetent solely because of their hospitalization.   As stated in section 5331, ‘No person may be presumed to be incompetent because he or she has been evaluated or treated for mental disorder ․ regardless of whether such evaluation or treatment was voluntarily or involuntarily received.’   Similarly, section 5326.5, subdivision (d), which is part of a section defining the written consent required in certain circumstances, reiterates the basic idea that:  ‘[a] person confined shall not be deemed incapable of refusal [of proposed therapy] solely by virtue of being diagnosed as a mentally ill, disordered, abnormal, or mentally defective person.’  ” (209 Cal.App.3d at p. 1315, 271 Cal.Rptr. 199, fn. omitted.)

11.   A criminal defendant is under no compulsion to plead not guilty by reason of insanity.  (People v. Vanley (1974) 41 Cal.App.3d 846, 854, 116 Cal.Rptr. 446.)

SWAGER, Acting P.J.

STRANKMAN,* and MARCHIANO, JJ., concur.