Topic:
MENTAL HEALTH; CIVIL COMMITMENTS; DRUGS;
Location:
COMMITMENT;

OLR Research Report


October 21, 1999

 

99-R-1059

MEDICATION FOR INVOLUNTARILY COMMITTED MENTALLY ILL PEOPLE

 
 

By: Saul Spigel, Chief Analyst

You asked for (1) a description of “Rogers' Law” in Massachusetts and similar laws in New York and Florida; (2) the number of people in Connecticut committed to a state mental health facility for criminal behavior, the number who take medication to control their behavior, and the cost of their treatment; and (3) the cost of confining people in a Department of Correction facility.

SUMMARY

“Rogers' Law” establishes a process for the state to determine whether a patient involuntarily committed to a psychiatric facility is competent to make decisions about medications and, if not, enabling the state to make those decisions for him. Unlike New York's recently enacted “Kendra's Law” (see OLR report 99-R-0899), it does not address outpatient treatment of mentally ill people.

All three states and Connecticut prohibit forcing involuntarily committed mentally ill people to take medication over their objection unless a court finds them incompetent to decide on their medical treatment. Each has a process for making competency determinations and treatment decisions. In Massachusetts, if a court finds a patient incompetent, it substitutes its judgement for the patient's to determine what he would do if competent. After it decides on the treatment plan, the court appoints a guardian to monitor compliance.

Florida requires a psychiatric facility to determine within the first 24 hours of admission whether a patient is competent to make treatment decisions. If the facility finds he is not competent and has no guardian to make decisions, it must ask a court to judge his competence. If the court finds the person incompetent, it appoints a guardian advocate who must be specially trained before he can make any medication decisions.

In New York, if an involuntary patient refuses medication, two physicians must determine that the proposed treatment is in the patient's best interests and that he is not competent to make treatment decisions. If the patient continues to object, a court must authorize the treatment. Both New York and Florida require the court to find clear and convincing evidence (the middle standard of proof) that the person is incompetent.

Connecticut law allows psychiatric facilities to use an internal, administrative process for making involuntary medication decisions. Such a process must provide for: (1) an independent decision maker, (2) notice to the patient of available advocacy services; (3) the patient's right to be represented at any hearing and to question witnesses, and (4) a written decision. If the hospital and two doctors determine a patient is incompetent, the hospital must ask the probate court to appoint a conservator to make treatment decisions.

In Connecticut, criminal offenders who, because of their mental illness require confinement in a secure facility, are placed in the Department of Mental Health and Addiction Services' (DMHAS) Whiting Forensic Division. Currently, the division serves 242 people. The last time a daily treatment cost at Whiting was computed (FY 1994-95) it was

$738; adjusting for inflation would raise that cost today to $834. The cost for incarcerating someone at Northern Correctional Facility, the state's maximum security prison, was $157 per day in FY 1998-99.

Medication information for Whiting patients is confidential.

MEDICATION OF INVOLUNTARY MENTAL HEALTH PATIENTS

Massachusetts (MGLA 123 8B)

A person committed involuntarily to a mental hospital or facility in Massachusetts has the right to make decisions about his treatment, including whether to take antipsychotic medications, unless a court determines he is incompetent to make those decisions. The process that determines his competence begins when the head of the facility asks the district court where it is located to (1) determine whether the patient is competent to make treatment decisions and (2) authorize treatment with antipsychotic medication.

Sometimes the petitions for treatment and commitment are filed at the same time; in these cases the commitment must be finalized before the court can rule on the treatment petition. The person has the right to notice and a hearing and to be represented by counsel. The court can rely solely on documentary evidence if the attorneys agree that the facts of the case are not in dispute.

Before he can order a patient medicated, the judge must: (1) find that the person is incompetent to make an informed decision about the treatment, (2) find that, if he were competent, the patient would agree to the treatment, and (3) approve and authorize a written treatment plan. The judge must use a “substituted judgment” standard to determine whether the patient, if competent, would agree to the treatment; that is he attempts to decide what the incompetent person would do if he or she were competent. He can apply such factors as the person's religion, the decision's effects on the person's family, the probability of adverse side effects, and the prognosis without treatment. The judge's treatment decisions must be in keeping with accepted professional practice (see Guardianship of Brandon, 424 Mass. 482 (1997).

Once he makes the decision to order treatment, the judge may appoint a guardian to monitor the medication treatment process to make sure the court's plan is followed. If a guardian is not readily available, the court must monitor. The treatment plan lasts as long as the commitment order (initially six months with one-year extensions possible) and may be modified through another petition process.

Florida (FSA 394.459(3), 4598)

Florida law entitles every patient in a mental health facility to participate in preparing his treatment plan. Each patient entering a facility, voluntarily or involuntarily, must be asked to consent to his treatment, which includes medication. Before consenting he must be informed of the proposed treatment and its purpose, the approximate treatment duration, its common side effects, and alternative treatments. He must be told that he can revoke his consent before treatment starts or during it.

Regulations spell out the process for obtaining consent and for determining whether a patient who refuses consent is competent and whether to administer the proposed medication. It requires facilities to which a patient is admitted to determine within 24 hours whether he is capable of giving informed consent. If a court has already appointed a guardian for the person, it is assumed he is unable to make treatment decisions and the facility must try to locate the guardian to give consent to medicating him (FL Administrative Code, 65E-5.170)

If an involuntary patient has no guardian and a facility psychiatrist believes he is incompetent to make treatment decisions, the facility administrator must ask the court to determine his competence. The court must hold a hearing on the petition and find by clear and convincing evidence that he is incompetent to make medication decisions.

If the court finds him incompetent, it must appoint a guardian advocate to make treatment decisions. The guardian advocate cannot be employed by the facility where the patient is being treated or the Department of Children and Families or be a member of a district human rights advocacy committee. Before he is appointed, the guardian advocate must be told about his duties and responsibilities and the ethics of medical decision-making. Before he can exercise his authority, he must receive at least four hours of training in patients' rights, psychotropic medications, and diagnosis of mental illness. And before a facility can ask him to consent to treatment, it must give him sufficient information to make a decision, including whether the treatment is essential to patient's care and whether it presents an unreasonable risk of serious, hazardous, or irreversible side effects.

New York

New York statutes are silent on medicating involuntarily committed patients who refuse to consent to treatment. But a 1986 Court of Appeals (the state's highest court) ruling affirms patients' rights to refuse treatment and establishes the process that must be followed before a psychotropic drug may be administered to a patient who refuses. It requires a court to determine (1) by clear an convincing evidence whether such a patient is able to make a reasoned decision and then (2) that the proposed treatment is tailored to his condition (Rivers v. Katz, 67 N.Y.2d 483, 504 N.Y.S.2d 74, 495 N.E.2d 337 (1986).

State regulations spell out the process for determining competence. If a patient rejects medication, the treating doctor must formally evaluate (1) whether the treatment is in the patient's best interest in light of all relevant circumstances such as its risks, benefits, and alternatives; (2) the nature of the patient's objections, and (3) whether the patient is capable of making an informed decision. If he finds that the treatment is in the patient's interest and the patient cannot make a reasoned decision, he must tell the patient and inform the state's Mental Hygiene Legal Service and the patient's representatives.

If the patient still objects, the treating doctor must tell the facility's clinical director who must arrange for a second physician's opinion of the same three issues. The second doctor must review the patient's record and examine him personally. If he concurs with the first doctor, he must tell the patient. If he disagrees on either the proposed treatment or the patient's decision-making capacity, the clinical director can seek a third opinion.

If the patient continues to object to medication, the clinical director must decide on the patient's competence and treatment. If he decides the patient is not competent and needs the treatment, he must ask a court to authorize it. As described above, the court must base its authorization on clear and convincing evidence that the person is unable to make a reasoned decision and that the proposed treatment is tailored to his condition (14 NYCRR 527.8)

MENTALLY ILL CRIMINALS IN CONNECTICUT

Number Served and Cost

In Connecticut, criminal offenders who, because of their mental illness require confinement in a secure facility, are placed in the Department of Mental Health and Addiction Services' (DMHAS) Whiting Forensic Division. Currently the division serves 242 people.

Not all of the people Whiting serves are convicted criminals. Most, in fact, are found not guilty by reason of insanity before they are committed. Their status is subject to review by the Psychiatric Review Board. Others are convicted criminals under the supervision of the Correction Department (DOC) who have been transferred for treatment.

Whiting provides several levels of treatment in different facilities, most located on the grounds of Connecticut Valley Hospital in Middletown. In order to maximize its hospital cost reimbursements, DMHAS now incorporates the cost of Whiting's operation in the CVH budget. FY 1994-95 is the last date for which DMHAS can provide a separate daily cost for Whiting. At that time the cost was $738; adjusting for inflation would raise that cost today to $834 per day. This figure represents only treatment at the Whiting facility (the most secure facility on the campus); it does not include treatment at the less secure (and less costly) Dutcher and Batelle facilities.

Medication

The medication information you requested is not available. Medication records are part of each patient's medical records, which are by law confidential. Decisions on medication use are also part of ongoing negotiation between doctors and patients, consequently they change over the course of treatment.

Connecticut Law on Medicating without Consent (CGS 17a-543)

Connecticut law prohibits giving medication to treat a patient's psychiatric disabilities without his informed consent, except according to specific procedures. It allows psychiatric facilities to develop an internal process for making involuntary medication decisions affecting inpatients. Such a process must provide for: (1) an independent decision maker who is not employed by the facility; (2) written and oral notice to the patient of available advocacy services; (3) the patient's right to be represented at any proceeding held to determine the need for involuntary medication; (4) the patient's right to question witnesses, including doctors who maintain he is incapable of giving informed consent and needs medication; and (5) a written decision.

If the head of the hospital and two physicians determine that the patient is incapable of giving informed consent to medication, the hospital may use its internal procedure to make the decision and can ask the probate court to appoint a conservator specifically authorized to decide whether to consent to medication. The conservator may decide to consent only after meeting with the patient and attending physician and reviewing the patient's record. The conservator's decision must be based on (1) the risks and benefits of the medication, (2) the likelihood and seriousness of adverse side effects, (3) the patient's preferences, (4) the patient's religious views, and (5) the patient's prognosis with and without medication.

For patients who are capable of giving informed consent to medication but refuse to do so, the hospital may use its internal decision process and apply to the probate court for permission to administer medication if the following conditions are met. The head of the hospital and two physicians must determine that (1) there is no less intrusive beneficial treatment and (2) without medication, the patient's psychiatric disabilities will continue unabated and place him or others in “direct threat of harm,” that is his clinical history demonstrates a pattern of serious physical injury or life-threatening injury to himself or others.

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