Moses v. Hunter, No. Cv-94-0705482s (Jan. 31, 1995)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION This is an action to enjoin the superintendent and other staff employees of Cedarcrest Regional Hospital ("Cedarcrest") from medicating the plaintiff, over his objection, with medication for the treatment of mental illness, in non-emergency situations. The parties have filed a stipulation of facts, from which the following summary is drawn.

The plaintiff is a patient hospitalized at Cedarcrest, a facility for the treatment of mental illness, operated by the Department of Mental Health ("DMH") since December 6, 1993. Defendants, DMH employees, have medicated the patient on at least three non-emergency occasions over his objection with long acting psychotropic medication, based upon the consent of the plaintiff's conservator of the person. The conservator was appointed by the Hartford Probate Court on July 29, 1989, pursuant to what is now General Statutes § 45a-650, in an order which states that plaintiff "is incapable of caring for himself . . . by CT Page 657 reason of physical and mental disabilities." The written consent of the conservator indicated he had met with the patient, the patient's physician and other members of the treatment team; reviewed plaintiff's written record; considered the risks and benefits of the medication; was informed of the likelihood and seriousness of adverse side effects; and considered the plaintiff's preferences, religious views and his progress with or without medication.

The plaintiff claims under the provisions of Public Act 93-369, which became effective on October 1, 1993, that he may not be forcibly medicated in non-emergency situations absent a hearing in probate court to determine his competence to give informed consent to treatment with such drugs. He argues that in issuing the 1989 order the probate court appointing his conservator did not sufficiently consider his competence to give such consent. Defendants argue that this law does not require the probate court to pass on the specific issue of plaintiff's capacity to give or withhold informed consent to such medication, and that they have conformed to the requirements of the statute.

Public Act 93-369 consists of four sections amending Sections 17a-543, 17a-540, 17a-541 and 17a-542 sequentially.

The amendments to Section 17a-543 are most pertinent to this case and are set forth in nine subsections.

Subsection (a) provides that "No patient shall receive medication for the treatment of mental illness of such patient without the informed consent except in accordance with the procedures set forth in subsection (b), (d), (e) and (f) . . .".

Subsection (b) provides that no "medical or surgical procedures" may be performed without the patient's informed consent or the written consent of a conservator appointed pursuant to General Statutes Section 45a-650, except in certain emergency situations.

Subsection (d) provides for the establishment of an internal procedure by a mental health facility for the involuntary medication of inpatients in situations where CT Page 658 the "condition of the patient will rapidly deteriorate"; such medication being limited to a period not exceeding thirty days.

Subsection (e) reads as follows:

(e) If it is determined by the head of the hospital and two qualified physicians that a patient is incapable of giving informed consent to medication for the treatment of such patient's mental illness and such medication is deemed to be necessary for such patient's treatment, a facility may utilize the procedures established in subsection (d) of this section and may apply to the court of probate for appointment of a conservator of the person under section 45a-650. The conservator shall meet with the patient and the physician, review the patient's written record and consider the risks and benefits from the medication, the likelihood and seriousness of adverse side effects, the preferences of the patient, the patient's religious views, and the prognosis with and without medication. After consideration of such information, the conservator shall either consent to the patient receiving medication for the treatment of the patient's mental illness or refuse to consent to the patient receiving such medication.

II It has been argued that the consent of the conservator in this case is sufficient authority for the hospital to administer psychotropic drugs to the patient over his objection, since subsection (a) specifically lists subsection (b) as an exception and subsection (b) on its face provides that "medical surgical procedures" may be performed with the written consent of a conservator who has been appointed pursuant to general statutes § 45a-650.

This argument must be rejected for the following reasons:

(1) Subsection (b) refers to "medical or surgical procedures only. These terms fall short and do not include CT Page 659 "medication for the treatment of a mental illness." The phrase used in both sub-sections (a) and (b) of § 17a-543 prior to amendment by Public Act 93-369 was "medication and treatment" which is a much broader term than "medical or surgical procedures", but was not retained in Public Act 93-369. This would indicate a legislative intent not to include the medication for the treatment of mental illness within the term "medical and surgical procedures."

(2) The exceptions listed in subsection (a) set forth in subsections (b), (d), (e) and (f) are in the conjunctive and not in the disjunctive. Subsection (a) cannot be operative with reference to subsection (b) alone, but must be interpreted together with the other subsections, particularly (d) and (e). If (e) provides for a procedure for the appointment of a conservator under Sec. 45a-650, and, thereafter, that conservator is required to meet the several conditions set forth in that subsection before he can validly consent to the administration to his ward of medication for mental illness, it would make no sense to permit a single consent under subsection (b). If this were sufficient all of subsection (e) would be meaningless and have no effect.

(3) If the procedure outlined in subsection (e) is mandatory on any conservator it is obvious that in the procedure of applying for a conservator by a facility, either after, or without going through the procedure of subsection (d), the patient would have an opportunity to be heard in probate court on the specific question of whether he is able to give informed consent. Indeed, in a situation where the probate court were to find that a ward was not capable of giving informed consent, the court's order appointing the conservator might sensibly include a direct reference to the power of the conservator to give such consent.

III The public act does not explicitly address the question at issue in this case, namely whether a person whose previously appointed conservator is entitled to a further proceeding in probate court to address the issue of his competence to give consent to psychotropic medication CT Page 660 for the treatment of mental illness. However, language of the entire public act clearly establishes the right of a patient to give or withhold his informed consent with respect to such treatment.

Public Act 93-359 begins with the statement: "No patient shall receive medication for the treatment of the mental illness of such patient without the informed consent of such patient . . ." Section 3 of said Public Act reads:

[n]o patient . . . shall be deprived of any personal, property or civil rights . . . unless he has been declared incompetent pursuant to sections 45a-644 to 45a-662, inclusive. [Any finding of incompetency shall specifically state which personal or civil rights the patient is incompetent to exercise.]^**"

Recent United States Supreme Court cases have indicated that a strong due process safeguard surrounds the right not to have one's body invaded by unwanted administration of psychotropic medication absent a finding of overriding justification and medical appropriateness.Riggins v. Nevada, 112 S.Ct. 1810, 1815 (1992); Washingtonv. Harper, 494 U.S. 210, 110 S.Ct. 1028 (1990).

The legislative history behind Public Act 93-369 indicates a clear intention to bring due process protection against involuntary psychotropic medication to mental patients in the light of these Supreme Court decisions.

Current law . . . provides that a person who has been involuntarily committed can be medicated against his/her will. The United States Supreme Court . . . has ruled that such statutes which unilaterally allow a state to medicate a person against his/her will are unconstitutional. . . . [H.B. 7288] brings Connecticut law into compliance with U.S. Supreme Court rulings (Washington v. Harper Riggins v. Nevada) on involuntary medication and it provides due CT Page 661 process protections for patients. . . .

Conn. Joint Standing Committee Hearings, Judiciary Part 8, 1993 Sessions, p. 3018 (testimony of Kenneth Marcus, M.D., Deputy Commissioner, Conn. Department of Mental Health).

IV For the above reasons we conclude that Public Act 93-369 permits a patient objecting to the medication for a mental illness to have a determination by the Probate Court of his ability to give informed consent, where his conservator was appointed without reference to his ability to give informed consent in a procedure not instituted under subsection (e).

Defendants are restrained from medicating the plaintiff until he consents or has had a duly noticed hearing in probate court finding that he is unable to give informed consent to medications for mental illness and his conservator has submitted a writing which indicates that he has followed the procedures set forth in the new subsection (e) of General Statutes § 17a-543, listing the steps taken, and stating that after consideration of the information received, the conservator consents to the patient receiving such medication.

Nothing in this restraining order should be interpreted to interfere with the right of the defendants to administer medications in emergency situations under subsection (b) or rapidly deteriorating situations under subsection (d) or in direct threat of harm situations under subsection (f).

Wagner, J.