PEOPLE v. DELGADO

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Court of Appeal, First District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Jim DELGADO, Defendant and Appellant.

No. A042372.

Decided: August 31, 1989

Peter Dodd, Richmond, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Morris Lenk, Bruce Slavin, Tomar Mason, Deputy Attys. Gen., San Francisco, for People.

Appellant Jim Delgado (prisoner), in the custody of the California Department of Corrections, appeals from the trial court's order authorizing involuntary long-term psychotropic medication.

I. PROCEDURAL BACKGROUND

Under Keyhea v. Rushen (1986) 178 Cal.App.3d 526, 223 Cal.Rptr. 746 and the injunction issued pursuant thereto (Solano Super.Ct., No. 67432 [hereafter:  Injunction] ),1 state prisoners may be given involuntary medication 2 only under strict procedural safeguards, which may be summarized as follows:

Involuntary medication for three days or less may be administered to the prisoner without any safeguards (Injunction p. 2.)   Forced medication for an additional 21 days may be ordered only if following a certification hearing, the hearing officer, based upon medical evidence, finds that the prisoner, as a result of mental disorder, is gravely disabled and incompetent to refuse medication, or is a danger to others, or is a danger to self.3  (Injunction p. 6.)   Involuntary medication cannot continue for more than 24 days without a court order.   To obtain involuntary medication beyond 24 days, the Department of Corrections must file a verified petition in the superior court alleging the following:  the nature of the psychiatric condition of the prisoner;  the recommended course of psychiatric treatment which is considered medically appropriate;  the threat to the health of the prisoner if the recommended treatment is delayed or denied by the court;  the available alternatives to the recommended treatment;  the incidents that precipitated the filing of the petition;  and the medical opinion that the prisoner, as a result of mental disorder, presents a danger to others or to self, or is gravely disabled and incompetent to refuse medication (Injunction pp. 16–17.)   Involuntary medication may be authorized for up to 180 days if the court finds by clear and convincing evidence that the prisoner, as a result of mental disorder, is a danger to others or to self, and for up to one year if the prisoner is found gravely disabled.  (Injunction p. 21.)

Prisoner herein, after initial confinement at Soledad, was admitted to the acute psychiatric inpatient ward at the California Medical Facility, Vacaville (CMF) on February 15, 1988.   On March 18, 1988, following the Keyhea procedure, a notice of certification signed by two psychiatrists was prepared alleging that prisoner was a danger to self and gravely disabled as a result of mental disorder.   Following a certification hearing conducted on March 25, 1988, prisoner was found to be both gravely disabled and a danger to self.   The reasons for the decision were stated as follows:  “Inmate has a dx [diagnosis] of paranoid schizophrenia.   On 2/10/88 he threatened to kill a nurse after accusing her of ‘dipping insulin needles in acid.’   Following his transfer to CMF he has periodically refused to take his insulin.   His paranoid ideation prevents him from realistically evaluating his need for medication.”

On April 7, 1988, a petition for long-term involuntary medication was filed in the superior court.   The petition alleged that as a result of mental disorder, prisoner presented a danger to both himself and others and was gravely disabled and incompetent to refuse psychotropic medication.   At the beginning of the Keyhea hearing, petitioner withdrew the allegation of danger to others and proceeded only on the two remaining grounds.   After hearing the trial court found that prisoner was gravely disabled and incompetent to refuse psychotropic medication and also found that prisoner presented a danger to himself due to his refusal to take insulin.   Consistent therewith, the court sustained the petition on both of the above grounds and authorized prisoner's involuntary medication with psychotropic drugs for up to one year.

II. FACTS

Dr. Edgar Brichta, staff psychiatrist, testified that prisoner was a diabetic patient and was in need of daily insulin.   He was transferred from Soledad to CMF because he believed he was being poisoned by the staff with a contaminated insulin syringe.   While at CMF, prisoner made claims he had supernatural powers;  was assigned to be God;  had metal in his sperm;  and had connections with Howard Hughes.   Based upon prisoner's past record and present history, Dr. Brichta diagnosed him as schizophrenic, paranoid type.   Dr. Brichta felt the delusions stemming from the mental sickness led prisoner to believe that he was above mundane matters like sickness and that the taking of insulin was not necessary.

Based upon such medical evidence, Dr. Brichta concluded that prisoner was gravely disabled because due to mental disorder he was unable to appreciate his insulin need and to use insulin, a necessity of life.   He further opined that by not taking insulin, prisoner inflicted serious harm upon himself because “by refusing his medication, especially the insulin, he would eventually succumb to illness that's progressive” and fatal.   Dr. Brichta felt prisoner was unable to give informed consent and thus was incompetent to refuse medication because he lacked the requisite insight and failed to realize that he suffered from mental illness.   Dr. Brichta finally expressed his view that without psychotropic medication prisoner would revert to his prior behavior and reject insulin altogether, which would lead to severe illness and eventually to death.

Prisoner testified that he wanted to be transferred from Soledad because of the violence at that facility.   He refused to take insulin at Soledad in order to effect his transfer to CMF and because the insulin needles were hurting too much.   Prisoner explained that he made up his story about being God, possessing supernatural power, knowing Howard Hughes, having steel in his testicles, etc., in order to avoid being returned to Soledad.   Prisoner also insisted that he rejected only the psychotropic medication but was ready to take insulin.   Prisoner's latter contention (at least in part) is supported by the record which shows that prisoner objected mainly to taking the antipsychotic medication and was willing (or could be persuaded) to take insulin.

III. DISCUSSION

Prisoner challenges the trial court's order on two grounds.   He first argues that the evidence introduced at the Keyhea hearing was insufficient to show present grave disability 4 (Conservatorship of Smith (1986) 187 Cal.App.3d 903, 232 Cal.Rptr. 277;  Conservatorship of Benvenuto (1986) 180 Cal.App.3d 1030, 226 Cal.Rptr. 33;  Conservatorship of Murphy (1982) 134 Cal.App.3d 15, 184 Cal.Rptr. 363), as well as his incompetence to refuse psychotropic medication (Conservatorship of Waltz (1986) 180 Cal.App.3d 722, 227 Cal.Rptr. 436;  Lillian F. v. Superior Court (1984) 160 Cal.App.3d 314, 206 Cal.Rptr. 603).   Prisoner's second contention is that even if the findings of grave disability and incompetence to refuse consent are found to be supported by sufficient evidence, the order cannot be sustained because involuntary medication with psychotropic drugs was not found to be the least restrictive alternative available (Welf. & Inst.Code,5 § 5325.1, subd. (a);  Foy v. Greenblott (1983) 141 Cal.App.3d 1, 190 Cal.Rptr. 84;  Guardianship of Phillip B. (1983) 139 Cal.App.3d 407, 188 Cal.Rptr. 781;  Maxon v. Superior Court (1982) 135 Cal.App.3d 626, 185 Cal.Rptr. 516);  he contends that it was administered primarily for the convenience of hospital staff (Guardianship of Roe (1981) 383 Mass. 415, 421 N.E.2d 40, 53).   We agree with prisoner that the court's role does not cease upon finding that he is gravely disabled and incompetent to refuse medication;  that finding only authorizes the court to exercise its discretion in ordering long-term involuntary medication;  and that discretion requires a consideration of the least restrictive alternatives.   We find such consideration here lacking and are compelled to reverse.

A. Consideration of Whether Forced Medication Is the Least Restrictive Alternative Is Required by Law

 It is elementary that the state has a legitimate interest in providing care to its citizens who are unable to care for themselves because of emotional or mental disorders.  (Addington v. Texas (1979) 441 U.S. 418, 426, 99 S.Ct. 1804, 1809, 60 L.Ed.2d 323;  see also Estelle v. Gamble (1976) 429 U.S. 97, 103, 97 S.Ct. 285, 290, 50 L.Ed.2d 251.)   The duty to care for mentally disordered persons and the procedural safeguards in administering medication to them extend also to prisoners who, with certain exceptions relating to prison security and public safety (Pen.Code, § 2600), possess the same rights as conservatees under the Welfare and Institutions Code.   (Keyhea v. Rushen, supra, 178 Cal.App.3d 526, 532–533, 223 Cal.Rptr. 746.)   Both statutory and case law make it clear, however, that medication furnished for mentally disabled persons must be necessary and must be provided in such a way that is the least restrictive or intrusive of the patient's individual freedom.

Thus, in regulating involuntary treatment of mentally disordered persons, section 5325.1 provides in part:  “It is the intent of the legislature that persons with mental illness shall have rights including, but not limited to, the following:  [¶ ] (a) A right to treatment services which promote the potential of the person to function independently.   Treatment should be provided in ways that are least restrictive of the personal liberty of the individual․ [¶ ] (c) 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.”  (Emphasis added.)   This is in harmony with section 5358, subdivision (b), which reaffirms that the conservator of a gravely disabled person may require that the conservatee receive only such medication that “is necessary for the treatment of an existing or continuing medical condition.”

Case law is in accord.   In Foy v. Greenblott, supra, 141 Cal.App.3d 1, 190 Cal.Rptr. 84, the court, relying on section 5325.1, subdivision (a), stated that, “Every institutionalized person is entitled to individualized treatment under the ‘least restrictive’ conditions feasible” (id., at p. 10, 190 Cal.Rptr. 84), and that “mental health professionals are expected to opt for treatments and conditions of confinement least restrictive of patients' personal liberties” (id., at p. 11, 190 Cal.Rptr. 84 [a decision rejecting appellant's contention that the county health facility at which she was confined had a duty to provide “extra supervision” of her contacts with men to insure she did not conceive] ).   In Maxon v. Superior Court, supra, 135 Cal.App.3d 626, 633–634, 185 Cal.Rptr. 516, the court was again eager to point out that hysterectomy, a serious and drastic invasion of the conservatee's privacy, may be judicially authorized only if there is clear and convincing evidence that it is the least intrusive means possible to achieve medical objectives.

In addition, we discern cogent policy reasons dictating that long-term psychotropic medication should be judicially authorized only if other less restrictive alternatives are not available.   Psychotropic or antipsychotic drugs are “powerful enough to immobilize mind and body”.  (Guardianship of Roe, supra, 421 N.E.2d at p. 53.)   They “also possess a remarkable potential for undermining individual will and self-direction, thereby producing a psychological state of unusual receptiveness to the directions of custodians.”  (Gelman, Mental Hospital Drugs, Professionalism and the Constitution (1984) 72 Geo.L.J. 1725, 1751;  Keyhea v. Rushen, supra, 178 Cal.App.3d at p. 531, 223 Cal.Rptr. 746.)   In addition, antipsychotic drugs have well-recognized possible side effects.   These include sedation to the extent of interference with the ability to function normally, i.e., akathesia, an irresistible urge to move;  pseudo-Parkinsonism (causing mask-like facial expression, body rigidity, tremor, drooling and a shuffling gate);  blurred vision;  dry mouth;  dizziness or faintness, drug induced mental disorders and, on rare occasions, sudden death.   A potentially permanent side effect of long-term exposure to these drugs for which there is no cure, is tardive diskenesia, a neurological disorder manifested by involuntary, rythmic and grotesque movements of the face, mouth, tongue, jaw, and extremities.  (Kemna, Current Status of Institutionalized Mental Health Patients' Right to Refuse Psychotropic Drugs (1985) 6 J.Legal Med. 107, 111–114;  Keyhea v. Rushen, supra, at p. 531, 223 Cal.Rptr. 746;  Davis v. Hubbard (N.D.Ohio 1980) 506 F.Supp. 915, 928–929.)   As concisely characterized in Keyhea:  “Forced drugging is one of the earmarks of the gulag” (Keyhea v. Rushen, supra, 178 Cal.App.3d at p. 542, 223 Cal.Rptr. 746).

That consideration of lesser restrictive alternatives is required before ordering long-term involuntary psychotropic medication has been recognized as the law of California by those most closely associated with the problem, at least since October 1986.   It was then, complying with the rule of Keyhea, that Judge Jensen issued his Injunction detailing the procedures which the Department of Corrections must follow before psychotropic drugs can be involuntarily administered to any California prisoner.   That Injunction requires that the petition requesting judicial approval to continue involuntary medication for more than 24 days must be verified and allege “the available alternatives, if any, to the course of treatment recommended.”   The Attorney General does not take issue with Keyhea's holding that prisoners are statutorily entitled to a judicial determination of their competency to refuse treatment before they can be subjected to long-term involuntary psychotropic medication.   Moreover, the Attorney General has agreed (at oral argument) that the Injunction governing the department's administration of psychotropic medication to prisoners is in conformance with the Keyhea decision.   Since the parties agree that California law requires such an allegation, it necessarily follows that evidence relating thereto must also be required.

 We find untenable respondent's contention that in ordering involuntary medication no medical evidence on the least drastic alternative is required because under both federal and state law courts must defer to the professional judgment of medical experts.  (Youngberg v. Romeo (1982) 457 U.S. 307, 321, 102 S.Ct. 2452, 2461, 73 L.Ed.2d 28;  Rennie v. Klein (3d Cir.1983) 720 F.2d 266, 269;  Conservatorship of Waltz, supra, 180 Cal.App.3d 722, 733, fn. 13, 227 Cal.Rptr. 436;  Conservatorship of Fadley (1984) 159 Cal.App.3d 440, 446, 205 Cal.Rptr. 572.)

This case is governed not by federal law but by state statute (Keyhea v. Rushen, supra, 178 Cal.App.3d 526, 541, 223 Cal.Rptr. 746).   That statute unequivocably mandates that involuntary treatment of mentally disordered persons must be provided in ways which are the least restrictive of the personal liberty of the patient (see § 5325.1, subd. (a), supra ).

Moreover, while federal law trusts the choice of treatment to professional judgment (Youngberg v. Romeo, supra, 457 U.S. at p. 321, 102 S.Ct. at p. 2461), federal cases applying that law emphasize that in exercising professional judgment the patient's interest must be considered and the least harmful alternative must be explored.   As stated in Rennie v. Klein, supra, 720 F.2d 266, 274:  “[T]he physician must consider both the welfare of the patient and the interests of society as a whole.   This requires a consideration of whether there may be any harmful side effects to the patient and whether there are possible alternatives to the use of the drugs.”

Finally, Waltz and Fadley do not negate the necessity of considering the least drastic alternatives to the recommended treatment.   The controlling statute in both of those cases is section 5326.7, which provides that convulsive treatment may be administered to the patient only if:  “(a) The attending or treatment physician enters adequate documentation in the patient's treatment record of the reasons for the procedure, that all reasonable treatment modalities have been carefully considered, and that the treatment is definitely indicated and is the least drastic alternative available for this patient at this time.   Such statement in the treatment record shall be signed by the attending and treatment physician or physicians.”  (Emphasis added.)   Consistent with the controlling statute, Waltz and Fadley stand for the proposition that medical evidence on the various modalities of treatment (including the least intrusive alternative) must be presented, but when the medical expert has chosen one of the available options the trial court must defer to the professional judgment of the expert.  Waltz and Fadley are inapplicable where, as here, the petitioner failed to adduce any evidence on any alternative to the recommended treatment;  in such a situation there is a complete absence of professional judgment to which the trial court must defer.   The conclusion is thus inescapable that the trial court committed error in authorizing long-term antipsychotic medication without requiring consideration of whether another less intrusive treatment might be medically indicated.

We note that Riese v. St. Mary's Hospital & Medical Center (1987) 209 Cal.App.3d 1303, 243 Cal.Rptr. 241 is likewise distinguishable and does not dictate a contrary result.   In dicta, Riese does state that “The court is not to decide such medical questions as whether the proposed therapy is definitely needed or is the least drastic alternative available” (id., at p. 1322, 243 Cal.Rptr. 241, emphasis added);  Riese recognizes, however, that under well-settled law the role of the court is “to ensure that professional judgment has been exercised in the decision to medicate a patient.”  (Id., at p. 1320, 243 Cal.Rptr. 241.)   The plain holding of Riese is that the medical conclusion that a patient is incompetent to refuse medication is subject to judicial review:  “The determination by a physician that an individual is mentally incompetent to refuse drug treatment cannot be exempted from judicial evaluation on the ground that the medical determination rests upon an unimpeachable scientific foundation.” 6  (Id., at p. 1324, 243 Cal.Rptr. 241.)

The discussion in Riese concerning the limitations on the role of the court is, as recognized by its concurring opinion, unnecessary to its holding.   Furthermore, the underlying reasoning of Riese emphasizes the necessity to accord the greatest protection to the individual and safeguard him or her from unwarranted medication.   Such reasoning is consistent with our premise that there must be a demonstrated consideration of less drastic alternatives before the court authorizes the forced administration of mind-altering drugs to a prisoner.   Moreover, cogent public policy reasons dictate drawing a distinction between procedures employed involving prisoners and those applicable to conservatees when it comes to the involuntary administration of psychotropic medication.   Testimony on the consideration of alternatives to psychotropic medication is necessary in the case of incompetent state prisoners because the treatment invades “the quintessential zone of human privacy” (Riese v. St. Mary's Hospital & Medical Center, supra, 209 Cal.App.3d at p. 1318, 243 Cal.Rptr. 241), and the state is in effect supplying “consent” to the treatment in the form of a court order.   Outside of prison, even if a court has determined that a mental patient is incompetent, psychotropic drugs may not be administered on a long-term basis without the consent of a responsible relative, guardian or conservator.  (Id., at p. 1323, 243 Cal.Rptr. 241.)   No such third-party consent is provided under the Keyhea Injunction, where forced medication may be ordered for up to a year based solely on findings of incompetence and grave disability.

B. No Evidence Was Introduced Herein Concerning Any Alternatives to Involuntary Administration of Psychotropic Medication

Notwithstanding this authority and these policy reasons, respondent failed to introduce any evidence (1) concerning the availability or nonavailability of a less drastic alternative to the recommended treatment or (2) tending to prove that psychotropic medication was the only viable means to assure prisoner's daily taking of insulin.   The “verified petition for judicial determination re:  involuntary medication” upon which the challenged judgment is based, did allege that the available alternatives to psychotropic medication were “None, other than isolation and forced maintenance of daily life requirements.”   Such an allegation complies with the Keyhea Injunction requirement that the verified petition must allege and set forth by medical affidavit or declaration “the available alternatives, if any, to the course of treatment recommended.”

Respondent's position is that the only answer to the problem presented was forced administration of haldol, a psychotropic drug.   The evidence indicates that no other means were even considered, let alone rejected.   Indeed, Dr. Brichta testified:  “What we are doing, we are reaching for the one and only treatment modality [i.e., haldol] that we have—that we have any belief in benefiting the patient.”   No evidence was introduced concerning why this was the “only treatment modality.”   No evidence was introduced concerning why, in the professional judgment of the treating physician, “isolation and forced maintenance of daily life requirements” was not an appropriate alternative.   Without such evidence the court lacks the necessary foundation upon which to base its order.

CONCLUSION

We discern that California law today gives mentally ill prisoners those same rights, absent security considerations, afforded mentally ill nonprisoner conservatees.   Those rights include judicial review of the decision to medicate, as well as judicial review of the prisoner's competence to refuse treatment.7  We do not hereby imply that it is a judicial function to determine which course of medical treatment is appropriate for each patient.   We hold only that the Keyhea Injunction correctly requires an allegation in the petition of alternatives to the involuntary administration of psychotropic drugs and that such allegation necessitates the introduction of evidence thereon.   This insures that a considered professional judgment has, indeed, been exercised with respect to the involuntary administration of psychotropic medication.   We find such evidence here entirely lacking and reverse the order.

APPENDIX

In the Superior Court of the State of CaliforniaIn and for the County of SolanoCanal Keyhea, et al., Plaintiffs,v.Ruth Rushen, et al., Defendants.No. 67432ORDER GRANTING PLAINTIFFS' MOTION FOR CLARIFICATION AND MODIFICATION OF INJUNCTION AND PERMANENT INJUNCTION

The motion of plaintiffs' for an order clarifying and modifying the injunction issued by this court on July 9, 1984, came on for hearing in Department II of this court on October 20, 1986, October 21, 1986, October 22, 1986, and October 23, 1986, before the Honorable William E. Jensen.

Appearing as attorneys for plaintiffs were Peter Sheehan and Steven Zieff and appearing as attorneys for defendants were Bruce Slavin and Joyce Blair.

Satisfactory proof having been made, and good cause appearing,

IT IS ORDERED that the injunction issued on July 9, 1984, is clarified and modified as set forth below.

IT IS FURTHER ORDERED that defendant Rushen and her successor in interest to the position of the Director of the California Department of Corrections and defendant Ylst, the Superintendent of the California Medical Facility, and their officers, agents, employees, representatives, successors in interest, and all person acting in concert or participating with them, shall be and are hereby perpetually enjoined and restrained henceforth from engaging in, committing or performing directly or indirectly by any means whatsoever any and all of the following:

1. Administering to individuals confined within the jurisdiction of the California Department of Corrections involuntary medication in excess of 3 days unless such individuals are provided with the protections specified in §§ IIA to IIG, inclusive, of this permanent injunction;

2. Administering to individuals confined within the jurisdiction of the California Department of Corrections involuntary medication in excess of 10 days unless such individuals are provided with the protections specified in §§ II H to II P inclusive of this permanent injunction;

3. Administering to individuals confined within the jurisdiction of the California Department of Corrections involuntary medication in excess of 24 days unless such individuals are provided with the protections specified in §§ III A to III I inclusive of this permanent injunction.

I

DEFINITIONS

The following definitions apply to the terms used in this permanent injunction.

1. “Informed Consent”:  Informed consent means that the prisoner, without duress or coercion, clearly and explicitly manifests consent to the proposed medication to the treating physician in writing.   In order to obtain informed consent, the following information shall be given to the prisoner in a clear and explicit manner:

a.  The reason for treatment, that is, the nature and seriousness of the person's illness, disorder or defect.

b. The nature of the procedures to be used in the proposed treatment, including its probable frequency and duration.

c. The probable degree and duration (temporary or permanent) of improvement or remission, expected with or without such treatment.

d. The nature, degree, duration, and the probability of the side effects and significant risks, commonly known by the medical profession, of such treatment, including its adjuvants, especially noting the degree and duration of memory loss (including its irreversibility) and how and to what extent they may be controlled, if at all.

e. That there exists a division of opinion as to the efficacy of the proposed treatment (if such a division of opinion exists), why and how it works and its commonly known risks and side effects.

f. The reasonable alternative treatments, and why the physician is recommending this particular treatment.

g. That the individual has the right to accept or refuse the proposed treatment, and that if he consents, he has the right to revoke his consent for any reason, at any time prior to or between treatments.

2. “Incompetent to Refuse Medication”:  A prisoner is “incompetent to refuse medication” or “lacks the capacity to refuse medication” if the prisoner cannot understand or knowingly and intelligently act upon the information specified under “informed consent” above.   A prisoner shall not be deemed incompetent to refuse medication or lacking the capacity to refuse medication solely by virtue of being diagnosed a mentally ill, disordered, abnormal or mentally defective person.

3. “Gravely Disabled”:  Gravely disabled is defined in substantial accord with Welfare and Institutions Code § 5008 subdivision (1).   A prisoner is “gravely disabled” if the prisoner, as a result of a mental disorder, is unable to use the elements of life which are essential to health and safety including food, clothing, and shelter, even though provided to the prisoner by others.

4. “Danger to Others”:  Danger to others is defined in substantial accord with Welfare and Institutions Code § 5300.   A prisoner is a “danger to others” only if one of the following exist:

a.  The prisoner has attempted, inflicted, or made a serious threat of substantial physical harm upon the person of another after having been taken into custody, and while in custody, for evaluation and treatment, and who, as a result of mental disorder, presents a demonstrated danger of inflicting substantial physical harm upon others.

b. The prisoner has attempted, or inflicted physical harm upon the person of another, that act having resulted in his or her being taken into custody and who presents, as a result of mental disorder, a demonstrated danger of inflicting substantial physical harm upon others.

c. The prisoner had made a serious threat of substantial physical harm upon the person of another within seven days of being taken into custody, that threat having at least in part resulted in his or her being taken into custody, and the person presents, as a result of mental disorder, demonstrated danger of inflicting substantial physical harm upon others.

5. “Custody”:  The term “custody” shall be construed to mean confinement in an inpatient psychiatric unit uninterrupted by any period of release or transfer from such a unit.   An inpatient psychiatric unit is a service, department or division of a facility which is organized, staffed and equipped to provide inpatient care for mentally disordered individuals.

6. “Danger to Self”:  A prisoner is a “danger to self”, if, as a result of mental disorder, the prisoner, while in custody, has threatened or attempted to take his own life or has threatened, attempted, or inflicted serious physical injury on himself and who continues to represent an imminent threat of taking his own life or an imminent threat of inflicting serious physical injury on himself.

7. “Involuntary Medication”:  “Involuntary medication” refers to the administration of any psychotropic, psychoactive, or antipsychotic medication or drug to any person by the use of force, discipline, or restraint.   It includes the administration of any such medication or drug to a person who does not give informed consent as defined herein.

8. “Psychotropic or Antipsychotic Drugs”:  The terms “psychotropic drugs” and or “antipsychotic drugs” refer to drugs or medications used in the treatment of mental disease, mental disorder, or mental defect.   The terms include, but are not limited to, thorazine, prolixin, stelazine, serentil, guide, lithium, loxitane, tindal, compazine, trilafon, repoise, mellaril, tracton, navane, haldol, moban and vesprin.

II

CERTIFICATION FOR INVOLUNTARY MEDICATION OF UP TO 21 DAYS DURATIONA. CONDITIONS FOR CERTIFICATION

1. If a prisoner has been administered involuntary medication for 72 hours or less, he or she may be certified for not more than 21 additional days of involuntary medication related to a mental disorder under the following conditions:

a. the professional staff of the facility where the prisoner is incarcerated has analyzed the prisoner's condition and has found either that the prisoner is, as a result of mental disorder, gravely disabled and incompetent to refuse medication or a danger to others, or a danger to self.

b. the prisoner has been advised of the need for, but has not been willing to accept medication on a voluntary basis.

B. NOTICE OF CERTIFICATION

1. For a prisoner to be certified for involuntary medication of 21 days or less, a notice of certification shall be signed by two people.   The first person shall be the chief psychiatrist or person in charge of psychiatric treatment at the facility in which the prisoner is confined.   A designee of the professional person in charge of psychiatric treatment at the facility shall be a psychiatrist or a licensed psychologist who has a doctoral degree in psychology and at least five years of postgraduate experience in the diagnosis and treatment of emotional and mental disorders.

2. The second person shall be a physician or psychologist who participated in the evaluation.   The physician shall be, if possible, a board certified psychiatrist.   The psychologist shall be licensed and have at least five years of post graduate experience in the diagnosis and treatment of emotional and mental disorders.

3. If the professional person in charge, or his designee, is the physician who performed the medical evaluation or a psychologist, the second person to sign may be another physician or psychologist unless one is not available, in which case a social worker or a registered nurse who participated in the evaluation shall sign the notice of certification.

C. FORM OF NOTICE OF CERTIFICATION

1. A notice of certification is required for all persons certified for 21 days of involuntary medication, and shall be in substantially the following form:

The medical staff of the (name of the facility) has evaluated the condition of:

Name _

Location _

Age _

Sex _

Marital Status (if known) _

We the undersigned allege that the above-named prisoner is as a result of mental disorder;

(1) A danger to others.

(2) A danger to self.

(3) gravely disabled in that the prisoner is unable to use the elements of life which are essential to health and safety including food, clothing, and shelter, even though provided to the prisoner by others.

The specific facts which form the basis for our opinion that the above-named prisoner meets one or more of the classifications as is indicated above.

(certifying persons to fill in blanks) _ _ _

[Strike out all inapplicable classifications]

The above-named prisoner has been informed of this evaluation, and has been advised of the need for, but has not been able or willing to accept medication on a voluntary basis.

We, therefore, certify the above-named prisoner to receive involuntary medication related to the mental disorder for no more than 21 days beginning the _ day of [month], 19_, in the facility herein named _

_ [Date]

Signed:  _

Signed _

Countersigned _  (Representing Facility)

I hereby state that I delivered a copy of this notice this day to the above-named prisoner and that I informed him that unless judicial review is requested a certification review hearing will be held within ten days of the initial involuntary medication and that an attorney or advocate will visit him to provide assistance in preparing for the hearing or to answer questions regarding his or her involuntary medication or to provide other assistance.

Signed:  _

D. COPIES OF CERTIFICATION NOTICE;  DESIGNATION OF PERSON TO BE INFORMED

A copy of the certification notice shall be personally delivered to the prisoner certified for involuntary medication of 21 days or less, the prisoner's attorney, or the attorney or advocate designated.   The prisoner certified shall also be asked to designate any person who is to be sent a copy of the certification notice.   If the prisoner certified is incapable of making this designation at the time of certification, he shall be asked to designate a person as soon as he is capable.   Delivery of the notice shall take place within 5 days after the initial involuntary medication.

E. INFORMING PERSON CERTIFIED OF RIGHT TO CERTIFICATION REVIEW HEARING;  RIGHT TO ASSISTANCE AT HEARING

The person delivering the copy of the notice of certification to the prisoner certified shall, at the time of delivery, inform the prisoner certified that he is entitled to a certification review hearing, to be held within ten days of the initial involuntary medication of the prisoner, in accordance with paragraph II of this order unless judicial review is requested, to determine whether or not probable cause exists to subject the prisoner to involuntary medication related to the mental disorder.   The prisoner certified shall be informed of his rights with respect to the certification review hearing, including the right to the assistance of another person to prepare for the hearing or to answer other questions and concerns regarding his involuntary medication or both.

F. INFORMING PERSON CERTIFIED OF RIGHT TO HABEAS CORPUS AND RIGHT TO COUNSEl

The person delivering the copy of the notice of certification to the prisoner certified shall, at the time of delivery, inform the prisoner certified of his legal right to a judicial review by habeas corpus and shall explain that term to the prisoner certified, and inform the person of his right to counsel, including court appointed counsel.

G. CERTIFIED PERSON'S MEETING WITH ATTORNEY OR PATIENT ADVOCATE

1. As soon after the certification as practicable, an attorney or patient advocate shall meet with the prisoner certified to discuss the involuntary treatment process and to assist the prisoner in preparing for the certification review hearing or to answer questions or otherwise assist the prisoner as is appropriate.

2. The attorney or patient advocate must be provided with timely access to all health care records which adult patients are entitled to pursuant to Health and Safety Code §§ 25251 et seq. and Welfare and Institutions Code § 5328 subdivisions (b) and (j), the prisoner's central, medical, and psychiatric files, and all documents and files on which defendants rely in certifying the prisoner for involuntary medication or requesting an order authorizing involuntary medication.   These records shall be released to the attorney or patient advocate upon presentation of a release of information signed by the prisoner, except that when the prisoner is unable or unwilling to sign such release, the staff of the facility, upon satisfying itself of the identity of the attorney or advocate, and of the fact that the attorney or advocate does represent the interests of the prisoner, shall release all such information and records relating to the prisoner.

H. TIME LIMIT FOR HOLDING CERTIFICATION REVIEW HEARING

When a prisoner is certified for involuntary medication, a certification review hearing shall be held unless judicial review has been requested by the prisoner seeking a petition for writ of habeas corpus.   The certification review hearing shall be held within ten days of the initial involuntary medication of the prisoner unless postponed by the prisoner or his attorney or advocate.   Hearings may be postponed for 48 hours by the prisoner or his attorney or advocate.

I. PROCEDURE REGARDING CERTIFICATION REVIEW HEARING

1. The certification review hearing shall be conducted by either a court-appointed commissioner or a referee, or a certification review hearing officer.   The certification review hearing officer shall be either a state qualified administrative law hearing officer, a medical doctor, a licensed psychologist, a registered nurse, a lawyer, a certified law student, or a licensed clinical social worker.   Licensed psychologists, licensed clinical social workers, and registered nurses who serve as certification review hearing officers shall have had a minimum of five years experience in mental health.   Certification review hearing officers shall be selected from a list of eligible persons unanimously approved by a panel composed of the local mental health director, the public defender, and the district attorney of the county in which the facility is located.   No employee of the California Department of Corrections may serve as a certification review hearing officer.

2. The provisions of section II I 1 of this permanent injunction are stayed until January 1, 1987.   Between the date this permanent injunction is filed and January 1, 1987, the certification review hearing shall be conducted by a psychiatrist selected by the California Department of Corrections.   The psychiatrist selected by the California Department of Corrections may not be an employee of the California Department of Corrections.

3. The location of the certification review hearing shall be compatible with, and least disruptive of, the treatment being provided to the prisoner certified.   In addition, hearings conducted by certification review officers shall be conducted at an appropriate place at the facility where the prisoner certified is receiving treatment.

J. PRESENTATION OF EVIDENCE

At the certification review hearing, the evidence in support of the certification decision shall be presented by a person designated by the superintendent or warden of the facility.

K. CERTIFIED PRISONER'S RIGHT TO BE PRESENT

The prisoner certified shall be present at the certification review hearing unless he or she, with the assistance of his attorney or advocate, waives his or her right to be present at a hearing.

L. CERTIFIED PRISONER'S PROCEDURAL RIGHTS

1. At the certification review hearing, the prisoner certified shall have the following rights:

a.  Assistance by an attorney or advocate.

b. To present evidence on his or her own behalf.

c. To question persons presenting evidence in support of the certification decision.

d. To make reasonable requests for the attendance of facility employees who have knowledge of, or participated in, the certification decision.

e. If the prisoner has received medication within 24 hours or such longer period of time as the person conducting the hearing may designate prior to the beginning of the hearing, the person conducting the hearing shall be informed of that fact and of the probable effects of the medication.

2. The hearing shall be conducted in an impartial and informal manner in order to encourage free and open discussion by participants.   The person conducting the hearing shall not be bound by rules of procedure or evidence applicable in judicial proceedings.

3. All evidence which is relevant to establishing that the prisoner certified is or is not as a result of mental disorder either gravely disabled and incompetent to refuse medication or a danger to others or a danger to self may be admitted at the hearing and considered by the hearing officer.

M. CONCLUSION OF HEARING;  BASIS FOR TERMINATION OF INVOLUNTARY MEDICATION

1. If at the conclusion of the certification review hearing the person conducting the hearing finds that there is not probable cause to believe that the prisoner certified is, as a result of a mental disorder, either gravely disabled and incompetent to refuse medication or a danger to others or a danger to self, then the prisoner certified may no longer be involuntarily medicated.

2. In determining whether there is probable cause to believe that the prisoner is incompetent to refuse medication, the person conducting the certification review hearing must determine whether there is probable cause to believe that the prisoner is incapable of understanding or intelligently acting on the informational factors listed in the definition of “competent to refuse medication”, which is set forth in § I.

3. If at the conclusion of the certification review hearing the person conducting the hearing finds that there is probable cause that the prisoner certified is, as a result of a mental disorder, either gravely disabled and incompetent to refuse medication, or a danger to others or a danger to self, then the prisoner may be involuntarily medicated for 21 additional days beyond the end of the 72–hour period following the initial involuntary medication.

N. NOTICE OF DECISION TO CERTIFIED PRISONER;  NOTICE OF RIGHT TO FILE REQUEST FOR TERMINATION OF MEDICATION

The prisoner certified shall be given oral notification of the decision at the conclusion of the certification review hearing.   As soon thereafter as is practicable, the attorney or advocate for the prisoner certified and the director of the facility where the prisoner is receiving medication shall be provided with a written notification of the decision, which shall include a statement of the evidence relied upon and the reasons for the decision.   The attorney or advocate shall notify the prisoner certified of the certification review hearing decision and of his rights to file a request for termination of involuntary medication and to have a hearing on the request before the superior court.   A copy of the decision of the hearing officer and the certification notice shall be submitted to the superior court of the county in which the facility is located.

O. TERMINATION OF CERTIFICATION

Prisoners who have been certified for 21 days of involuntary medication shall not be involuntarily medicated beyond 24 days after the initial involuntary medication unless a court order has been obtained pursuant to paragraph III.

P. MAXIMUM PERIOD OF INVOLUNTARY MEDICATION

After the involuntary medication has begun, the total period of involuntary medication, including intervening periods of voluntary treatment, shall not exceed the total maximum period during which the prisoner could have been involuntarily medicated, if the prisoner had been medicated continuously on an involuntary basis, from the time of initial involuntary medication.

III

JUDICIAL AUTHORIZATION FOR INVOLUNTARY MEDICATION

Prior to involuntarily medicating a prisoner for more than 24 days, except as specified in paragraph III H below, defendants are ordered:  (1) to obtain an order authorizing involuntary medication from the Superior Court in accord with the provisions set forth in paragraphs IIIA to IIIG and, (2) to insure that the prisoner is provided with the procedural protections set forth in paragraphs IIIA to IIIG.

A. CONTENTS OF PETITION FOR ORDER AUTHORIZING INVOLUNTARY MEDICATION;  RESPONSE

1. In order to obtain an order authorizing involuntary medication for more than 24 days defendants must file a petition seeking such an order in the Superior Court of the County in which the prisoner is confined.

2. The petition must be verified and must allege and set forth by medical affidavit or declaration attached thereto, all of the following so far as is known to defendants at the time the petition is filed:

a. the nature of the psychiatric condition of the prisoner which requires treatment;

b. the recommended course of psychiatric treatment which is considered to be medically appropriate;

c. the threat to the health of the prisoner if authorization for the recommended course of treatment is delayed or denied by the court;

d. the predictable or probable outcome of the recommended course of treatment;

e. the available alternatives, if any, to the course of treatment recommended;

f. the efforts made to obtain an informed consent from the prisoner;

g. a reference to any incidents that precipitated the filing of the petition either by a summary of the incidents or the attachment of the incident reports (if any);

h. that the prisoner, as a result of mental disorder, presents a danger to others, presents a danger to self, or is gravely disabled and is incompetent to refuse medication;

i. the names and addresses of the prisoner's next of kin (if known) or persons listed in the prisoner's records to receive notification in case of emergency.

3. The prisoner or his attorney may file a response to the petition within five days of the service of the petition on the prisoner or his attorney.

B. PETITION FOR ORDER AUTHORIZING INVOLUNTARY MEDICATION:  SERVICE AND FILING

Defendants must file the petition and personally serve a copy of the petition on the prisoner and his attorney at least 15 days prior to the hearing on the petition.   In place of personal service on the prisoner's attorney, the attorney for the prisoner may be served by mail at least 20 days prior to the hearing.   At least 15 days prior to the hearing defendants must serve a copy of the petition on the prisoner's next of kin (if known) or on the persons listed in the prisoner's records maintained by defendants to receive notification in case of emergency.   Service on such individuals may be made by mail.

C. ASSISTANCE OF COUNSEL

The public defender or another attorney shall be appointed or an attorney shall be otherwise obtained to represent the prisoner within five days after the filing of the petition.   The attorney shall be provided timely access to the documents specified in § II G 2 pursuant to the procedures specified in § II G 2.

D. PERSONAL APPEARANCE AT JUDICIAL HEARING

1. The prisoner must be produced at the judicial hearing except in the following cases:

a. where the prisoner is unable to attend the hearing by reason of medical inability and, prior to the date of the hearing, defendants obtain a court order authorizing the non-attendance of the prisoner on such grounds.

b. where a court investigator reports to the court that the prisoner has expressly communicated that the prisoner (i) is not willing to attend the hearing and (ii) does not wish to contest the petition, and the court makes an order that the prisoner need not attend the hearing.

2. If the petition alleges or defendants contend that the prisoner is unable to attend the judicial hearing because of medical inability, such inability shall be established by the affidavit or certificate of a licensed medical practitioner.   The affidavit or certificate is evidence only of the prisoner's inability to attend the hearing and shall not be considered in determining the issue of need for an order authorizing involuntary medication.   Emotional or psychological instability is not good cause for the absence of the prisoner from the hearing unless, by reason of such instability, attendance at the hearing is likely to cause serious and immediate physiological damage to the prisoner.

3. If the petition alleges or defendants contend that the prisoner is not willing to attend the hearing, or upon the filing of an affidavit or certificate attesting to the medical inability of the prisoner to attend the hearing, defendants shall request that a court investigator be appointed to do all of the following or the prisoner's attorney be directed to do all of the following:

a.  Interview the prisoner personally.

b. Inform the prisoner of the contents of the petition, of the nature, purpose, and effect of the proceeding, and of the right of the prisoner to oppose the proceeding, to attend the hearing, to have the matter tried by jury, to be represented by legal counsel if he so chooses, and to have legal counsel appointed by the court if unable to retain legal counsel.

c. Determine whether it appears that the prisoner is unable to attend the hearing and, if able to attend, whether the prisoner is willing to attend the hearing.

d. Determine whether the prisoner wishes to contest the petition.

e. Determine whether the prisoner wishes to be represented by legal counsel and, if so, whether the prisoner has retained legal counsel and, if not, the name of an attorney the prisoner wishes to retain.

E. RIGHT TO EXPEDITED JUDICIAL DETERMINATION

1. The prisoner or his attorney shall have the right to file a written demand for an expedited court hearing on the petition.

2. If a demand for an expedited court hearing is filed, the court hearing shall commence within ten days of the date of the filing of the demand.

F. JUDICIAL DETERMINATION

Defendants must obtain a court order authorizing the recommended course of involuntary medication and finding that one or more of the following exist:

a. that the court has found, by clear and convincing evidence that the prisoner, as a result of a mental disorder, is gravely disabled and incompetent to refuse medication;

b. that the court has found, by clear and convincing evidence, that the prisoner as a result of a mental disorder is a danger to others or a danger to self.

G. REHEARING RIGHTS

The prisoner is afforded the right to petition the court for a rehearing to contest whether he presently is a danger to others, a danger to self, gravely disabled, or incompetent to refuse medication.   After the filing of the first petition for rehearing, no further petition for rehearing shall be submitted for a period of six months.

H. TEMPORARY ORDER

Defendants may involuntarily medicate a prisoner for a period of no more than 23 days beyond the end of the certification period or such lesser period as may be specified in the court order if all of the following are present:

a. defendants make a request for such a temporary order and submit an affidavit or declaration to the court clearly establishing the necessity for the temporary order;

b. defendants provide three days notice to the prisoner and to his attorney (if an attorney has been appointed or retained) of the request for a temporary order and personally serve the petition and all documents in support of the request for a temporary order on the prisoner and his attorney at least three days prior to the court's ruling on defendants' request;  and

c. defendants obtain such an order from the court.

I. LIMITATIONS ON LENGTH OF INVOLUNTARY TREATMENT

1. Defendants are further enjoined from administering involuntary medication to prisoners for whom a court order has been obtained as described in § III F (authorizing involuntary medication on the ground the prisoner is gravely disabled and is incompetent to refuse medication) for a period in excess of one year from the date of the order or such shorter period as may be specified in the order unless defendants file a new petition with the court and the prisoner is provided with the procedural protections specified in paragraphs III A to III H.

2. Defendants are further enjoined from administering involuntary medication to prisoners for whom a court order has been obtained as described in § III F (authorizing involuntary medication on the ground the prisoner is a danger to others or is a danger to self) for a period in excess of 180 days from the date of the order or such shorter period of time as may be specified in the order unless defendants file a new petition with the court and the prisoner is provided with the procedural protections specified in paragraphs III A to III H.

J. EMERGENCY ADMINISTRATION OF MEDICATION

1. Nothing in these procedures is intended to prohibit a physician from taking appropriate action in an emergency.   An emergency exists when there is a sudden marked change in the prisoner's condition so that action is immediately necessary for the preservation of life or the preservation of serious bodily harm to the patient or others, and it is impracticable to first obtain consent.   If antipsychotic medication is administered during an emergency, such medication shall be only that which is required to treat the emergency condition and shall be provided in ways that are least restrictive of the personal liberty of the patient.

2. Section III J 1 shall not be construed to vary or diminish in any way the procedural and substantive protections which must be provided to prisoners under §§ I, II, and III of this permanent injunction.   If a prisoner is administered involuntary medication in excess of 3 days he must be provided with the protections specified in §§ II A to II G.   If a prisoner is administered involuntary medication in excess of 10 days he must be provided with the protections specified in §§ II H to II P.   If a prisoner is administered involuntary medication in excess of 24 days he must be provided with the protections specified in § II A to III I.   Any period of emergency medication is to be included in the time periods specified in this permanent injunction.

3. In the event a prisoner who has been found by a court not to meet the criteria for involuntary medication within the preceding 30 days is administered antipsychotic medications in an emergency, and such emergency condition is likely to last beyond 24 hours, the treating physician shall file a new petition within 48 hours.   The prisoner or his attorney may file a request for an expedited hearing on the petition.   If such a request is filed, the hearing shall be held within 5 days of the filing of the request.

Dated:  Oct. 31, 1986.

         WILLIAM E. JENSEN

         William E. Jensen

         Judge of the Superior Court

FOOTNOTES

1.   By an order dated November 22, 1988, we took judicial notice of the Injunction, which we reproduce in full as an appendix to this opinion.   The parties agree that this injunction controls the proceedings herein;  therefore, we do not reach the question of whether each clause is the law of California.

2.   “Involuntary medication” refers to the administration of any psychotropic, psychoactive, or antipsychotic medication or drug to any person by the use of force, discipline, or restraint.   It includes the administration of any such medication or drug to a person who does not give informed consent thereto.   The terms “psychotropic drugs” and or “antipsychotic drugs” refer to drugs or medications used in the treatment of mental disease, mental disorder, or mental defect.   The terms include, inter alia, thorazine, prolizin, stelazine and haldol (Injunction pp. 5–6).

3.   The prisoner is “gravely disabled,” if he or she, as a result of a mental disorder, is unable to use the elements of life which are essential to health and safety (including food, clothing, shelter, etc.)   (Injunction p. 4.)  “Incompetent to refuse medication” means that the prisoner cannot knowingly and intelligently consent to the medication (Injunction p. 4.)   The prisoner can be found “a danger to self” if he or she has threatened or attempted to take his or her life or has threatened or attempted to inflict, or has in fact, inflicted serious physical injury on himself or herself.  (Injunction p. 5.)

4.   We note that prisoner does not challenge the finding that he is a danger to self.

FN5. Unless otherwise indicated, all statutory references are to the Welfare and Institutions Code..  FN5. Unless otherwise indicated, all statutory references are to the Welfare and Institutions Code.

6.   The Riese court continues as follows:  “ ‘[B]ecause of the imprecision of the criteria and difficulty inherent in any attempt to compass the human mind’ (People v. Burnett [1987] 188 Cal.App.3d 1314, 1329 [234 Cal.Rptr. 67], citing Gould, The Mismeasure of Man (1981)), determinations of mental competence simply cannot achieve scientific certainty.   Moreover, the forcible administration of powerful mind altering drugs also involves moral and ethical considerations not solely within the purview of the medical profession, and must be measured by the social consensus reflected in our laws.   Exemption of these decisions from such external evaluation would invest physicians with a degree of power over others that cannot be squared with the intent of our Legislature and with the great value our society places on the autonomy of the individual.   Such complete power also would not serve and might even be inimical to the genuine interests of the medical profession.  [¶ ] Unless 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.’  (Rivers v. Katz [1986] [67 N.Y.2d 485, 504 N.Y.S.2d 74] 495 N.E.2d [337] at p. 341.)   The Legislature has made it eminently clear that this right does not disappear upon involuntary commitment.”  (Riese, supra, 209 Cal.App.3d at p. 1324, 243 Cal.Rptr. 241.)

7.   If either Keyhea and/or its resultant Injunction is not consistent with California law, certainly the Legislature would have told us so by now.

ANDERSON, Presiding Justice.

CHANNEL, J., concurs. PERLEY, J., concurs in the judgment.

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