PEOPLE v. WOODALL

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

The PEOPLE, Plaintiff and Respondent, v. Charles WOODALL, Defendant and Appellant.

No. A041054.

Decided: April 18, 1989

Stephen Selwyn Smith, Sausalito, for objector and appellant. John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Paul D. Gifford, Supervising Deputy Atty. Gen., Bruce M. Slavin, Deputy Atty. Gen., San Francisco, for respondent.

 Keyhea v. Rushen (1986) 178 Cal.App.3d 526, 223 Cal.Rptr. 746 (hereinafter Keyhea ), held that state prisoners have a statutory right to refuse long-term treatment with psychotropic drugs absent a judicial determination that they are incompetent to do so.   The issue in this case is whether a prisoner may be deprived of that right on the basis of a judicial determination that he is a danger to others as a result of a mental disorder.   Penal Code section 2600 (hereinafter section 2600) provides that “A person sentenced to imprisonment in a state prison may, during any such period of confinement, 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.”   Following Keyhea and applying section 2600, we hold that the state must prove by clear and convincing evidence not only that a mentally disordered prisoner is a danger to others, but also that there are no less intrusive means of providing for institutional security, before it may administer long-term involuntary medication over the prisoner's competent objection.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Injunction

After the decision in Keyhea, the Superior Court for the County of Solano entered a permanent injunction specifying the conditions for “involuntary medication” of individuals confined within the jurisdiction of the California Department of Corrections.  (Order Granting Plaintiffs' Motion for Clarification and Modification of Injunction and Permanent Injunction, filed October 31, 1986, in Keyhea v. Rushen, No. 67432;  hereinafter, the injunction).   For purposes of the injunction, “involuntary medication” means “the administration of any psychotropic, psychoactive, or antipsychotic medication or drug to any person by the use of force, discipline, or restraint,” as well as the administration of any such medication or drug to a person who does not give “informed consent” as defined in the injunction.1  The procedures required by the injunction may be outlined as follows.

Involuntary medication may be administered for more than three days only if the professional staff of the facility in which the prisoner is incarcerated has analyzed the prisoner's condition and has found that the prisoner is, as a result of a mental disorder, “gravely disabled and incompetent to refuse medication or a danger to others, or a danger to self,” 2 and the prisoner has been “advised of the need for, but has not been willing to accept medication on a voluntary basis.”   The injunction defines “danger to others” in substantial accord with the criteria for six month involuntary commitments under Welfare and Institutions Code section 5300 (hereinafter section 5300).3  As a consequence, mentally disordered prisoners do not constitute a “danger to others” within the meaning of the injunction or this opinion unless, on the basis of certain specified behavior, they are found to present “a demonstrated danger of inflicting substantial physical harm upon others.”  (§ 5300, subds. (a), (b), (c).)

Involuntary medication may continue for up to 21 additional days if the prisoner receives a “notice of certification” executed by designated medical personnel and, subject to exceptions within the control of the prisoner or the prisoner's attorney or advocate, a “certification review hearing” is held within ten days of the initial involuntary medication.   The certification review hearing is conducted by a court-appointed commissioner or referee, or a “certification review hearing officer” with specified qualifications.4  If the hearing officer finds “probable cause” that the prisoner is a danger to others as a result of a mental disorder, then the prisoner may be medicated involuntarily for a total of 24 days following the initial involuntary medication.

Absent an emergency,5 involuntary medication cannot continue for more than 24 days without a court order.   The state must file a verified petition in the superior court of the county in which the prisoner is confined, alleging inter alia:  the recommended course of psychiatric treatment which is considered to be medically appropriate;  the threat to the health of the prisoner if authorization for the recommended course of treatment is delayed or denied by the court;  the available alternatives, if any, to the course of treatment recommended;  the efforts made to obtain an informed consent from the prisoner;  and references to any incidents that precipitated the filing of the petition.   The prisoner has the right to an expedited hearing, appointed counsel and, subject to “medical inability,” 6 the right to appear at the hearing.   The court may authorize involuntary medication for 23 days based on an affidavit or declaration “clearly establishing the necessity for the temporary order.”   Involuntary medication may be administered for up to 180 days if the court finds by clear and convincing evidence that the prisoner, as a result of a mental disorder, is a danger to others.

B. Appellant's Case

In accordance with the foregoing procedures, involuntary medication of Charles Woodall (appellant), a prisoner incarcerated at the California Medical Facility at Vacaville, was authorized for a period of up to six months based on a judicial determination that he was a danger to others as a result of a mental disorder.   The record in appellant's case may be summarized as follows.

On September 24, 1987, appellant approached a correctional officer and asked to see a psychiatrist because he felt “like stabbing someone with an ice-pick, like stabbing them right in the eye.”   Appellant also stated that he had “felt like stabbing” an inmate volunteer porter the day before.   Appellant was certified for involuntary medication the next day, after he “began shouting racial slurs to several staff members,” refused to return his breakfast tray, tore holes in a blanket with his teeth, placed a portion of the blanket over his head like a mask, stuck pieces of toilet paper in his nose and lay on his bed giggling.   The September 25, 1987, notice of certification described appellant as “threatening and paranoid” and alleged that he was a danger to others, noting that he had twice threatened to “gauge [sic] the eyes” of a correctional officer in the preceding two days.   Further involuntary medication was authorized at a certification review hearing on October 2, 1987, based on a finding that appellant “present[ed] an imminent threat of substantial physical harm to others” as a result of a mental disorder.   The decision states that appellant “is hostile in manner, even after some medication;  admits to threats to gouge out officer's eyes, also bizarre conduct—putting his food & clothing into toilet․”

On October 15, 1987, the state filed its verified petition in the Solano County Superior Court for authorization to continue appellant's involuntary medication on the basis of his danger to others.   The petition listed “Group, occupational and recreational therapy” along with psychotropic medication as “recommended courses of treatment which are considered to be medically appropriate.”   Under “available alternatives,” however, it stated “None at present.”   The state obtained a temporary order for involuntary medication of appellant pending the November 5, 1987, hearing on the petition.

The only witness at the hearing was Dr. F. George Kassebaum, who was then appellant's treating physician.   Testifying as an expert in psychiatry, Kassebaum reviewed the circumstances of appellant's case, stated that he considered appellant's threats to be “very serious” and opined that appellant was “a danger to others.”   Kassebaum noted that appellant had improved with medication, but he did not testify unequivocally that involuntary medication was “necessary” in appellant's case,7 nor did he address whether any alternative was available.   He conceded that appellant sought psychiatric help voluntarily, was willingly taking medication as of the date of the hearing and had in fact refused medication only during a “brief interlude.”   In Kassebaum's view, however, this did not mean that appellant was not a danger to others or that he would continue to accept medication voluntarily.   At the conclusion of the hearing, the court found by clear and convincing evidence that appellant was “demonstrably a substantial danger to others as a result of a mental disease or defect or disorder,” and authorized continued involuntary medication for up to six months.

II. DISCUSSION

Appellant contends that the order for involuntary medication violates the statutory rights recognized in Keyhea, as well as his common law and constitutional rights, because it was not based on a finding of incompetence.   He also argues that the findings required for involuntary medication should be based on proof beyond a reasonable doubt rather than the less rigorous standard of clear and convincing evidence.

A. Preliminary Contentions

The state contends initially that appellant's claims must be rejected because they were not raised in the trial court or, alternatively, because they are barred by the decision in Keyhea on the grounds of res judicata or collateral estoppel.   We will address these arguments before proceeding to the merits.

 Although issues may not ordinarily be raised for the first time on appeal (see, e.g., Estate of Westerman (1968) 68 Cal.2d 267, 269, 66 Cal.Rptr. 29, 437 P.2d 517), this case falls within the exception for issues of law arising from undisputed facts (see, e.g., Seeley v. Seymour (1987) 190 Cal.App.3d 844, 857, 237 Cal.Rptr. 282) because there is no dispute about the findings the trial court made or the evidentiary standard it applied.   The state argues that it was prejudiced by appellant's failure to object in the first instance because evidence of his incompetence could have been presented if the objection had been sustained.   That point is moot, however, because the order for involuntary medication did not extend beyond six months and the state has already received the authorization it sought in this proceeding.   By the same token, of course, this appeal is also moot.   However, we may retain jurisdiction because the case poses “ ‘issues of public interest that are capable of repetition, yet avoiding review,’ ” and there is a “ ‘paucity of authority and interpretation’ ” concerning the injunction.  (See Conservatorship of Fadley (1984) 159 Cal.App.3d 440, 445, 205 Cal.Rptr. 572.)   Accordingly, the appeal is not barred by appellant's failure to contest the injunction in the trial court.

 We also conclude that the appeal may be heard notwithstanding the decision in Keyhea, which was a taxpayers' suit against various state officials.   Although this case, like Keyhea, involves the procedures necessary to administer involuntary psychotropic medication to prisoners, it raises different issues with respect to those procedures.  Keyhea determined that competent prisoners could not be denied their right to refuse psychotropic medication out of concern that their attendance at judicial competency hearings would threaten prison security, because substantial evidence indicated that this concern was unfounded.  (Keyhea, supra, 178 Cal.App.3d at p. 542, 223 Cal.Rptr. 746.)   The Keyhea court was not called upon to decide whether deprivation of the right would be justified under section 2600 based on a judicial finding that a mentally disordered prisoner is a danger to others, or to address the standard of proof in connection with any such finding.   Since the issues in this case are not “identical” to those “actually litigated” in Keyhea (see Levy v. Cohen (1977) 19 Cal.3d 165, 171, 137 Cal.Rptr. 162, 561 P.2d 252;  and In re Russell (1974) 12 Cal.3d 229, 233, 115 Cal.Rptr. 511, 524 P.2d 1295;  see also Code Civ.Proc., § 1911) we find no basis for the application of res judicata or collateral estoppel, and we need not decide whether appellant is in “privity” with the taxpayer-plaintiffs in Keyhea for purposes of those doctrines.

B. Section 5300

The premise of the state's first argument on the merits is that mental patients who are involuntarily committed under section 5300 based on a judicial determination that they are a danger to others may be medicated involuntarily for up to 180 days.   Since prisoners have no greater rights than nonprisoners under Keyhea, and since the injunction simply applies the section 5300 criteria of dangerousness to prisoners, the state contends that the injunction is consistent with Keyhea insofar as it authorizes 180 days of involuntary medication of mentally disordered and dangerous prisoners.   We find the premise of this argument to be unsound.

The contention that section 5300 authorizes involuntary medication is based on the following language in the statute:  “Any commitment to a licensed health facility under this article places an affirmative obligation on the facility to provide treatment for the underlying causes of the person's mental disorder.   (¶) Amenability to treatment is not required for a finding that any person is a person as described in subdivisions (a), (b), or (c) [the criteria for confinement under section 5300 and for finding that a prisoner is a “danger to others” under the injunction].  Treatment does not mean that the treatment be successful or potentially successful, and it does not mean that the person must recognize his or her problem and willingly participate in the treatment program.”  (§ 5300.)   The state argues that mental patients may not refuse psychotropic medication under the foregoing provisions because they need not “willingly participate” in a “treatment program” that might include such medication.

We begin our analysis of section 5300 by noting that it is a part of the Lanterman–Petris–Short Act (LPS).   For the reasons advanced in Keyhea, we accept the general proposition that LPS affords mental patients the right to refuse psychotropic medication unless they are found to be incompetent.8  The question, then, is whether the foregoing language is properly interpreted as denying that right to the class of mental patients covered by section 5300.   In making that determination, we must be informed by repeated statutory admonitions that mental patients retain all rights not specifically denied to them under LPS.  (See Welf. & Inst.Code, §§ 5005, 5325.1, and 5327.)

Although the language in question may be fairly susceptible of conflicting interpretations, it does not expressly provide that section 5300 patients forfeit their right to refuse treatment.   Although the state has an “affirmative obligation” to provide treatment for persons committed under section 5300, the statute goes on to state that treatment programs “need only be made available to these persons.”  (§ 5300, emphasis added.)   This statement does not purport to authorize involuntary treatment and suggests instead that no such treatment is contemplated.   It thus appears that language to the effect that “treatment” does not mean a patient must “willingly participate” was added to limit the state's obligation to furnish treatment, rather than to authorize treatment over a patient's objection.

The conclusion that section 5300 was not intended to authorize involuntary treatment is supported by a development in its legislative history.   The provisions establishing and defining the state's obligation to treat persons committed under section 5300 were added to the statute in 1982.   (Stats.1982, ch. 1563, § 1, pp. 6167–6168.)   They grew out of Assembly Bill No. 351, 1981–1982 Regular Session.   The bill was amended a number of times before passage, and at one point it contained the following language indicated in brackets:  “Amenability to treatment is not required for a finding that any person is a person as described in subdivisions (a) and (b), [nor is it required for treatment of such person].”  (Added by Assem. Amend. to Assem. Bill No. 351 (1981–1982 Reg.Sess.) January 4, 1982;  deleted by Assem. Amend. to Assem. Bill No. 351 (1981–1982 Reg.Sess.) January 13, 1982.)   If the statute had provided for treatment regardless of a patient's “amenability,” then it could have been viewed as authorizing involuntary treatment.   Deletion of this language suggests that section 5300 was not meant to authorize such treatment.

Under the reasoning of Keyhea, subject only to section 2600, dangerous prisoners have the same right to refuse treatment as dangerous mental patients.   Therefore, since mental patients found to be dangerous under section 5300 retain the right of refusal notwithstanding the state's “affirmative obligation” to treat them, mentally disordered prisoners who are dangerous also retain that right notwithstanding the state's obligation to treat their mental illness (see Estelle v. Gamble (1976) 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 [deliberate indifference to serious medical needs of prisoners violates Eighth Amendment] ).  For all of the foregoing reasons, involuntary medication of mentally disordered prisoners who are dangerous but competent cannot be justified by reference to section 5300 or the state's obligation to provide treatment.   It can only be justified as a prison security measure under section 2600.

C. Section 2600

Claims under section 2600 involve “a three-step inquiry:  (1) Are any ‘rights' implicated?  (2) If they are, does a ‘reasonable security’ problem exist which might permit a deprivation of rights under the statute?  (3) If so, to what extent are deprivations of those rights ‘necessary’ to satisfy reasonable security interests[?]”  (In re Arias (1986) 42 Cal.3d 667, 689–690, 230 Cal.Rptr. 505, 725 P.2d 664.)   Involuntary medication of prisoners based solely on a finding of dangerousness obviously “implicates” their statutory right, identified in Keyhea, supra, 178 Cal.App.3d at p. 530, 223 Cal.Rptr. 746, to refuse such medication absent a finding of incompetence.9  It is also apparent that a mentally disordered prisoner who presents a “demonstrated danger of inflicting substantial physical harm upon others” is a “reasonable security problem.”   The record in this case supports the trial court's finding that appellant was a danger to others within the meaning of the injunction.   Therefore, the only question under section 2600 is whether long term involuntary medication of appellant was “necessary” for purposes of prison security.

Since, “[b]y definition, the ‘necessary’ standard requires that a security measure be the least intrusive possible of inmates' rights yet flexible enough to satisfy the security need” (In re Arias, supra, 42 Cal.3d at p. 691, 230 Cal.Rptr. 505, 725 P.2d 664), the danger to others posed by mentally disordered prisoners justifies their involuntary medication only if there is no less intrusive means of insuring prison security.   Prisoners' rights under section 2600 must be determined with reference to the rights of nonprisoners (Ibid ), and mental patients in California are guaranteed the right to be treated “in ways that are least restrictive of the personal liberty of the individual” (Welf. & Inst.Code, § 5325.1, subd. (a)).  We conclude that the injunction is flawed insofar as it authorizes long-term involuntary medication of dangerous but competent prisoners absent a judicial finding that a less restrictive alternative does not exist.

The state objects that at present there is no “generally accepted medical alternative” other than psychotropic medication to “stabilize” an acutely psychotic patient.   We have already determined, however, that involuntary medication may not be imposed over a competent objection, and we are concerned at this point with the state's obligation to maintain the security of its prisons rather than the medical efficacy of the proposed treatment.   For purposes of prison security, the only feasible alternatives to involuntary medication may be physical restraints or isolation, but we are unable to conclude that as a matter of law these alternatives are “more intrusive” than psychotropic drugs from the standpoint of a competent prisoner who does not want to be medicated.   Although solitary confinement is known to cause adverse side effects (see Benjamin & Lux, Solitary Confinement as Psychological Punishment (1977) 13 Cal.Western L.Rev. 265, 266–277), the same is true of psychotropic drugs (see Keyhea, supra, 178 Cal.App.3d at p. 531, 223 Cal.Rptr. 746) and, in any event, where a mentally ill person poses a danger to others, “there is no reason why ․ every attempt should not be made to treat the person in the least restrictive manner.   In some cases this may mean physically, rather than chemically, restraining him;  in others, perhaps, just the opposite.”  (Weiner, Treatment Rights in Brakel et al., The Mentally Disabled and the Law (3d ed.1985) at p. 348.)

The state also appeals to cases involving mental patients' capacity to consent to convulsive treatment under Welfare and Institutions Code section 5326.7, noting that the courts have interpreted this statute to preclude judicial review of medical decisions that such treatment is the “least drastic alternative available.”  (See Conservatorship of Fadley, supra, 159 Cal.App.3d at p. 446, 205 Cal.Rptr. 572;  see also Conservatorship of Waltz (1986) 180 Cal.App.3d 722, 733, fn. 13, 227 Cal.Rptr. 436 [“it is not the role of the courts to second-guess the medical opinion of the patient's physician”].)  Our case, however, does not involve capacity to consent and we are called upon to apply a statute which, by definition, requires an analysis of less intrusive alternatives.

Although judicial involvement is required by section 2600 in this context whether or not such involvement is good policy, inquiry into less restrictive alternatives may help prevent the improper use of involuntary medication for the convenience rather than the “reasonable security” of prison staff.   A number of cases have cited the potential for abuse of psychotropic medication (see, e.g., Davis v. Hubbard (N.D.Ohio 1980) 506 F.Supp. 915, 927 [describing widespread use of psychotropic drugs for punishment and for convenience of hospital's staff] ).  The state responds that there is “no evidence in the present case that appellant, or any other inmate in the Department of Corrections, was ever administered psychotropic medications, voluntarily or involuntarily, for the convenience of staff.”   However, when asked whether involuntary medication would be “beneficial” in appellant's case, the state's witness responded that “the involuntary is a safeguard for the individual” because the “tracking of taking medication in CMF” is “much better when its on involuntary,” as if accurate recordkeeping were a sufficient justification for involuntary medication.   The need for proof on the question of alternatives may also help eliminate ambiguous pleadings like the petition in appellant's case, which alleged that there was no alternative to involuntary medication even though other forms of therapy were “medically appropriate.”

It bears emphasis, however, that a less intrusive alternative is required under section 2600 only if it is sufficient to “satisfy the security need” of the institution.  (In re Arias, supra, 42 Cal.3d at p. 691, 230 Cal.Rptr. 505, 725 P.2d 664.)   Certain of the alternatives suggested by appellant such as withdrawal of good time credits and loss of privileges are in the nature of punishment, and they would not address the security risk posed by a mentally disordered inmate who is a danger to others within the meaning of the injunction.   On the other hand, dangerous prisoners who are isolated or physically restrained may not properly claim that they are being “punished” for their mental illness if they refuse psychotropic medication and such medication is the only other way to control their violent behavior.   In view of the state's legitimate security interest, if such prisoners agreed to take psychotropic medication only when faced with the choice of isolation or physical restraint they could not complain, by analogy to LPS, that such consent was improperly obtained.  (See Welf. & Inst.Code, § 5326.5, subd. (b) [physician may not solicit consent to treatment by threatening patient with a “more restricted setting”].)

Section 2600 involves a balancing of “the state's security interests against the rights of detainees.”  (In re Arias, supra, 42 Cal.3d at p. 691, 230 Cal.Rptr. 505, 725 P.2d 664.)   Although our focus is on detainees' rights, we do not mean to suggest that the state cannot take whatever security measures are necessary to guard against the threat posed by prisoners like appellant.   Based on the foregoing discussion, we require only that less intrusive alternatives be considered if the safeguard is to be involuntary medication, and that such alternatives be employed if they will be adequate from the standpoint of institutional security.

D. Standard and Burden of Proof

Appellant contends that proof beyond a reasonable doubt should be required before a prisoner is found to be a danger to others under the injunction.   The state responds that the Keyhea plaintiffs asked for application of a clear and convincing evidence standard in proceedings for prisoners' involuntary medication, and that this aspect of the injunction should not be disturbed.   Each of these standards of proof has been applied in analogous situations.   (Compare Conservatorship of Roulet (1979) 23 Cal.3d 219, 235, 152 Cal.Rptr. 425, 590 P.2d 1 [proof beyond a reasonable doubt required to establish LPS conservatorship];  with Conservatorship of Sanderson (1980) 106 Cal.App.3d 611, 621, 165 Cal.Rptr. 217 [clear and convincing evidence required to establish probate conservatorship];  Lillian F. v. Superior Court (1984) 160 Cal.App.3d 314, 324, 206 Cal.Rptr. 603 [clear and convincing evidence required to find that LPS conservatee lacks capacity to refuse convulsive treatment];  and Maxon v. Superior Court (1982) 135 Cal.App.3d 626, 633–634, 185 Cal.Rptr. 516 [clear and convincing evidence required to establish medical necessity for hysterectomy of LPS conservatee].)  Appellant also cites Guardianship of Roe (1981) 383 Mass. 415, 421 N.E.2d 40, 60–61, which held that proof beyond a reasonable doubt is required in proceedings for involuntary medication of wards of the state of Massachusetts, but we note that this opinion did not address “the question of whether and to what extent the State interest in institutional order and safety may be capable of overwhelming the right of an involuntarily committed individual to refuse medical treatment” (Id. 421 N.E.2d at p. 61, fn. 23;  emphasis original).

Clear and convincing evidence is an intermediate standard of proof requiring more than a preponderance of the evidence (see generally Lillian F. v. Superior Court, supra, 160 Cal.App.3d at p. 320, 206 Cal.Rptr. 603), and we believe it strikes the most appropriate balance between the state's interest in institutional security and the rights of prisoners who are mentally disordered and dangerous.   There is no provision for jury trials in these proceedings, and no reason to doubt the trial court's ability to distinguish evidence that is clear and convincing from that which merely predominates.   Accordingly, we affirm the injunction insofar as it requires the state to prove by clear and convincing evidence that mentally disordered prisoners are a danger to others.

We hold, however, that long-term involuntary medication of such prisoners may not be authorized unless the state can also show, by clear and convincing evidence, that there is no less intrusive way to provide for institutional security.   Although the state contends that it should not “be put in the position of having to prove a negative,” such proof is always necessary under section 2600, where the state bears the “burden of proving the absence of lesser drastic means ․ [¶] to further an objectively reasonable security need.”  (In re Arias, supra, 42 Cal.3d at p. 697, fn. 34, 230 Cal.Rptr. 505, 725 P.2d 664.)   As a practical matter, we do not anticipate that this additional proof will significantly affect the state's burden in these cases.   If the record in this instance is any indication, the only witness is likely to be the state's physician, and there is no reason why that expert should not address the allegation in the state's petition that there is no alternative to involuntary medication.

III. DISPOSITION

We have determined that the injunction is deficient insofar as it allows long-term involuntary medication of mentally disordered prisoners on the basis of their danger to others, without clear and convincing evidence that there are no less intrusive means of maintaining institutional security.   For purposes of this decision, “long-term” medication is medication beyond the maximum period of involuntary medication presently permitted under the injunction in the absence of a court order.   Since the state alleged but did not prove the absence of any alternative in appellant's case, the order authorizing his involuntary medication cannot be sustained.

Considerations of public policy militate against suspension of involuntary medication of prisoners already determined to be a danger to others pursuant to the injunction, and considerations of foreseeability and reliance dictate that the state not be required to reopen proceedings already concluded with respect to such prisoners.  (See generally Kreisher v. Mobil Oil Corporation (1988) 198 Cal.App.3d 389, 398, 243 Cal.Rptr. 662.)   To the extent that our decision affects the rights of other prisoners like appellant, it is to be applied prospectively from the date it becomes final.

The order is reversed and the case is remanded for further proceedings consistent with this opinion.

FOOTNOTES

1.   The injunction defines the terms “psychotropic drugs” and/or “antipsychotic drugs” as “drugs or medications used in the treatment of mental disease, mental disorder, or mental defect,” including, without limitation, “thorazine, prolixin, stelazine, serentil, guide, lithium, loxitane, tindal, compazine, trilafon, repoise, mellaril, tracton, navane, haldol, moban and vesprin.”  “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” after receiving all of the information about the treatment required by the injunction.   Such information includes inter alia the “probable frequency and duration” of the treatment, “why and how it works and its commonly known risks and side effects,” and the “reasonable alternative treatments.”   The prisoner must also be informed that he “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.   We have no occasion in this case to review the injunction insofar as it provides for involuntary medication of prisoners found to be a “danger to self” or gravely disabled and incompetent.

3.   Under section 5300, a person may be involuntarily committed to a mental health facility for a period not exceeding 180 days if any one of the following exists:  “(a) The person 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 [or mental defect], presents a demonstrated danger of inflicting substantial physical harm upon others.  (¶)(b) The person had 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 [or mental defect], a demonstrated danger of inflicting substantial physical harm upon others.  (¶)(c) The person had made a serious threat of substantial physical harm upon the person of another within seven (7) 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 [or mental defect], a demonstrated danger of inflicting substantial physical harm upon others.”  (§ 5300, subds. (a), (b), and (c).)   Except for deletion of the bracketed language and insertion of the underlined number, the injunction repeats the foregoing language verbatim in its definition of “danger to others.”   For purposes of the injunction, “custody” means “confinement in an inpatient psychiatric unit uninterrupted by any period of release or transfer from such a unit.”

4.   The injunction spells out the prisoner's procedural rights in connection with the certification review hearing, including inter alia the right to be present, to the assistance of an attorney or advocate, and to present evidence in opposition to the certification decision.

5.   The injunction states that none of the required procedures are “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 [sic] of serious bodily harm to the patient or others, and it is impracticable to first obtain consent.”   The maximum periods of involuntary medication permitted by the injunction include any periods of emergency medication.

6.   Such inability must be established by the affidavit or certificate of a licensed medical practitioner.   The injunction provides that 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.

7.   Kassebaum testified on this point as follows:  “Q. Doctor, was it necessary to administer involuntary medications to this patient for his benefit and for his recovery?   A. I think it was.   I certainly think that this is the accepted mode of treatment.   We certainly see a lot more response than when we don't use medication.   Necessary is ․ is a question that ․ to be able to say necessary is ․ a little more than I can attest to ․  Q. Now, you said that ․  You were asked a question, is it, in your opinion, necessary to administer involuntarily medications to Mr. Woodall, and it sounded to me as though you were concerned about the use of the word ‘necessary’?   A. Yes.   Looking at how we define ‘necessary,’ if we're willing to let a person continue to suffer and suffer and suffer from delusions and hallucinations as they did prior to the time we had no epileptic medication, then we would say, no, it's not a necessity.   But I think for their comfort's sake, because I think Mr. Woodall testified he feels better now than he did when he came in, and I think without question is, as he related that to me when we interviewed him on the 3rd.”

8.   That proposition may need to be reexamined depending upon the decision in Riese v. St. Mary's Hospital and Medical Center (1987) 196 Cal.App.3d 1388, 243 Cal.Rptr. 241 review granted 245 Cal.Rptr. 627, 751 P.2d 893 (1988), which involves the rights of mental patients involuntarily committed under Welfare and Institutions Code sections 5150 (72 hours) and 5250 (14 days) to refuse psychotropic drugs in nonemergency situations.

9.   Since we decline to reexamine Keyhea 's conclusion that prisoners have this statutory right, we need not consider whether the right has a common law or constitutional basis.  (Keyhea v. Rushen, supra, 178 Cal.App.3d at p. 541, 223 Cal.Rptr. 746.)

PERLEY, Associate Justice.

POCHÉ, Acting P.J., and CHANNELL, J., concur.

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