Taylor v. State Hospital ( 2022 )

620
Submitted June 4, 2021, affirmed May 18, 2022
JEFFREY TAYLOR,
Petitioner,
v.
OREGON STATE HOSPITAL,
Respondent.
Oregon State Hospital
88001; A173473
510 P3d 244
Petitioner seeks judicial review of the administrative law judge’s (ALJ) final
order affirming Oregon State Hospital’s (State Hospital’s) decision to administer
psychotropic medications to petitioner without his consent and denying rehear-
ing. He argues that State Hospital failed to follow the administrative rules gov-
erning informed consent and the administration of “significant procedures” in the
absence of informed consent. Held: There is substantial evidence that supports
the ALJ’s factual findings that State Hospital followed administrative rules in its
determination that petitioner did not have capacity to give informed consent and
its finding of good cause to administer psychotropic medication without informed
consent. The ALJ did not err in affirming State Hospital’s determination and
denying rehearing.
Affirmed.
Jeffrey Taylor filed the brief pro se.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jona J. Maukonen, Assistant Attorney
General, filed the brief for respondent.
Before Mooney, Presiding Judge, and Pagán, Judge, and
DeVore, Senior Judge.
MOONEY, P. J.
Affirmed.
Cite as 319 Or App 620 (2022) 621
MOONEY, P. J.
Petitioner is a patient residing at the Oregon State
Hospital (“State Hospital”). State Hospital notified peti-
tioner of its conclusion that it had good cause to adminis-
ter certain “significant procedures” (psychotropic medica-
tions) to petitioner without his informed consent. Petitioner
requested a hearing, and he now seeks judicial review of
the resulting final order that affirmed State Hospital’s deci-
sion to administer psychotropic medications to petitioner
without his consent and the final order denying rehear-
ing and reconsideration, both of which were issued by the
assigned aministrative law judge (ALJ) from the Office of
Administrative Hearings for the Oregon State Hospital.
Petitioner assigns error to the ALJ’s final orders arguing
that State Hospital failed to follow the administrative rules
concerning informed consent and the administration of “sig-
nificant procedures” in the absence of informed consent. We
conclude that State Hospital followed the applicable proce-
dures set forth in OAR 309-114-0010 and OAR 309-114-0020
and, therefore, we affirm.
We review the ALJ’s decision for substantial evi-
dence and legal error. ORS 183.482(8). “Substantial evidence
exists to support a finding of fact when the record, viewed
as a whole, would permit a reasonable person to make that
finding.” ORS 183.482(8)(c).
Petitioner has been diagnosed with schizophrenia
and he experiences auditory and visual hallucinations,
delusions, and paranoia as symptoms of that diagnosis.
Petitioner has received extensive inpatient and outpatient
treatment for his schizophrenia. Treatment with psychotro-
pic medications has been of benefit to him in the past; how-
ever, petitioner has also experienced restlessness as a side
effect of those medications. It was during a time when peti-
tioner stopped taking those medications because of the side
effects that his delusions returned, and he killed his room-
mate’s dog as a result. Petitioner was found guilty except
for insanity of one count of first-degree aggravated animal
abuse and two counts of first-degree animal abuse. He was
then admitted to the State Hospital under the jurisdiction of
the Psychiatric Security Review Board.
622 Taylor v. State Hospital
Once admitted to the State Hospital, it was
determined that petitioner required several medications.
Petitioner did not consent to take those medications. Because
the administration of psychotropic medication qualifies as a
significant procedure, the State Hospital issued petitioner
a “Notice of Involuntary Administration of Significant
Procedures (medications) with Good Cause.” After a hear-
ing requested by petitioner, the presiding ALJ issued a final
order authorizing State Hospital to administer psychotropic
medication without petitioner’s consent. As already men-
tioned, petitioner’s request for reconsideration was denied,
and this petition for review followed.
A patient is presumed competent to consent to or
withhold consent from significant procedures, which includes
the administration of psychotropic medication. OAR 309-
114-0010(2)(a); OAR 309-114-0005(16). Nevertheless, a state
institution may medicate a patient without the patient’s
informed consent for good cause. OAR 309-114-0010(1)(b)(C).
Several factors must be satisfied and present for good cause
to exist and they are described in OAR 309-114-0020(1).1
The sole issue raised by petitioner concerns the first factor—
whether petitioner was properly “deemed unable to consent”
to psychotropic medication. OAR 309-114-0020(1)(a).
A person committed to State Hospital may be
deemed unable to consent to significant procedures “only if
the person currently demonstrates an inability to reason-
ably comprehend and weigh the risks and benefits of the
proposed procedure * * * or no treatment at all.” OAR 309-
114-0010(2)(a). Inability to provide informed consent must
1
OAR 309-114-0020(1) provides, in part:
“Good cause: Good cause exists to administer a significant procedure to a
person committed to the Division without informed consent if in the opinion
of the treating physician or psychiatric nurse practitioner after consultation
with the treatment team, the following factors are satisfied:
“(a) Pursuant to OAR 309-114-0010(2), the person is deemed unable to
consent to, refuse, withhold or withdraw consent to the significant proce-
dure. This determination must be documented on the treating physician’s or
psychiatric nurse practitioner’s informed consent form and the independent
examining physician’s evaluation form. It must include the specific ques-
tions asked and answers given regarding the patient’s ability to weigh the
risks and benefits of the proposed treatment, alternative treatment and no
treatment including, but not limited to all relevant factors listed in 309-114-
0010(3)(a).”
Cite as 319 Or App 620 (2022) 623
be “documented in the patient’s record and supported by the
patient’s statements or behavior[.]” OAR 309-114-0010(2)(a).
Here, the ALJ found that, although petitioner had “shown
some understanding of the risks of the proposed medica-
tions,” he had “not shown an understanding of the benefits
of the proposed medications other than the medications that
treat anxiety.” The ALJ found that petitioner lacks “insight
into the nature and seriousness of his mental illness” and
that he did not understand that “his hallucinations are a
symptom of schizophrenia.” Petitioner’s psychiatric nurse
practitioner and the consulting physician both determined
that petitioner was unable to rationally weigh the risks
and benefits of the medication because of his delusions.
Substantial evidence in the record supports that finding.
Petitioner focuses on the requirement that a person
from whom informed consent to significant procedures is
sought must “be given information, orally and in writing, the
substance of which is to be found on the treating [provider’s]
informed consent form.” OAR 309-114-0010(3). Particularly
for medication, a person must be provided a “preprinted
information sheet on the risks and benefits of the medica-
tion” to be administered. OAR 309-114-0010(3). The treating
physician or psychiatric nurse practitioner must document
in the patient’s chart that the information required by OAR
309-114-0010(3) was explained to the patient and that the
patient either consented or refused the procedure. OAR 309-
114-0010(3)(b). Petitioner argues that he should have been
given the preprinted information sheet earlier in the pro-
cess than he was, and that he was thereby deprived of the
information that he needed to properly weigh the risks and
benefits of the proposed medications. But petitioner’s focus
on the timing of when he was given the written information
sheet ignores the evidence that his providers had discussed
the risks and benefits of the medications with him on sev-
eral occasions and that, in their opinions, he was not able
to rationally weigh those risks and benefits because of his
psychiatric illness.
The existence of good cause to administer a sig-
nificant procedure in the absence of informed consent does
not depend on whether or when the patient received written
624 Taylor v. State Hospital
information about the risks and benefits of the proposed
procedure. What matters is that
“[t]he institution made a conscientious effort to obtain
informed consent from the patient. * * * A ‘conscientious
effort’ to obtain informed consent means the patient’s
treating physician or psychiatric nurse practitioner made
at least two good faith attempts to obtain informed consent
by attempting to explain the procedure to the patient and
documenting those efforts in the patient’s record.”
OAR 309-114-0020(1)(d). The psychiatric nurse practitioner
documented her efforts to obtain petitioner’s informed con-
sent, and both she and the consulting physician documented
their conclusions that petitioner lacked the capacity to rea-
sonably comprehend and weigh the risks and benefits of
the medication and, ultimately, the capacity to consent—or
withhold consent—to the proposed medications. Only after
that process did the Chief Medical Officer review the records
and conclude that petitioner was unable to give informed
consent and that there was good cause to administer the
medications despite that inability.
In sum, we conclude that substantial evidence sup-
ports the ALJ’s factual findings, and the ALJ did not legally
err in determining that State Hospital followed the required
statutory procedures in determining petitioner’s capacity to
give informed consent and the existence of good cause to
administer the medications despite the lack of informed con-
sent. It follows that the ALJ did not err in affirming State
Hospital’s determination that the psychotropic medications
should be administered without petitioner’s consent.
Affirmed.