7:00 Overview of G.L. c. 123, § 8B proceedings
The District Court may authorize the administration of antipsychotic medications or other medical treatment of mental illness for persons committed to mental health facilities who are incompetent to give or withhold informed consent to such treatment. G.L. c. 123, § 8B.
When both a commitment petition and a § 8B petition are filed at the same time, the court must consider them separately, and the § 8B petition may be heard only after the court has entered a commitment order. See Standards 8:02 (Right to a Hearing in § 8B Proceedings) and 8:04 (Time Limits for § 8B Hearing).
In considering a § 8B petition, the court must first determine whether the respondent is incompetent to make an informed decision about the proposed medical treatment. See Standard 7:02 (Competency to Make Informed Treatment Decisions).
Next, the court must consider whether to authorize the proposed treatment. If authorization is sought to administer antipsychotic drugs, the court must make a “substituted judgment” decision, standing in the place of the respondent. See Standard 7:03 (Substituted Judgment for Treatment with Antipsychotic Drugs). If authorization is sought for other medical treatments for mental illness, the court must determine the applicable legal standard, which may also require a substituted judgment decision. See Standard 7:04 (Authorizing Treatments Other Than Antipsychotic Drugs).
All required elements must be shown by a preponderance of the evidence and the court must make detailed findings. See Standards 9:04 (Findings, Decision and Order in § 8B Proceedings) and 10:00 (Standard of Proof in § 8B Hearings).
If the court authorizes the proposed treatment, it must also approve a written treatment plan and is responsible for monitoring compliance with the treatment plan, although it may delegate the actual monitoring responsibilities to a guardian or other designated person. See Standards 11:00 (Contents of § 8B Treatment Plan) and 11:04 (Monitoring § 8B Treatment Plan).
Commentary
Introduction
“[T]he commitment proceeding itself is not intended to be a determination that the individual lacks the capacity to make his own treatment decisions . . . . [T]he commitment decision itself is an inadequate predicate to the forcible administration of drugs to an individual where the purported justification for that action is the state’s parens patriae power . . . . [A]bsent an emergency, a judicial determination of incapacity to make treatment decisions must be made before the state may rely on its parens patriae powers to forcibly medicate a patient.” Rogers v. Okin, 634 F.2d 650, 659-661 (1st Cir. 1980), vacated on other grounds sub nom. Mills v. Rogers, 457 U.S. 291 (1982).
General Laws c. 123, § 8B authorizes the District Court to adjudicate petitions seeking court authorization for administration of antipsychotic medications or other medical treatment of mental illness for persons committed to mental health facilities who are alleged to be incapable of giving or withholding informed consent to such treatment. Proceedings under this statute are often referred to as Rogers hearings, referring to the Supreme Judicial Court’s decision in Rogers v. Commissioner of Dept. of Mental Health, 390 Mass. 489 (1983), decided three years before the enactment of § 8B.
The Probate and Family Court has long had jurisdiction over such medical treatment authorizations in the context of guardianship proceedings, whether or not the ward was committed to a mental health facility. Beginning in 1986, G.L. c. 123, § 8B gave the District Court such jurisdiction solely with respect to committed persons who are incompetent to make such a decision for themselves. Since the majority of commitment cases are adjudicated in the District Court, § 8B greatly expedited the resolution of medical treatment petitions for committed persons. Most petitions for authorization to medically treat committed persons for mental illness are now heard in the District Court.
Section 8B does not confer jurisdiction on the District Court to authorize non-medical treatment, even if related to mental illness (e.g., psychotherapy), or to authorize medical treatment for illnesses other than mental illness. The court may authorize medical treatments that are ancillary to treatments for mental illness, such as drugs that are prescribed to prevent or treat the side effects of antipsychotic drugs.
If the § 8B petition seeks authorization to treat with antipsychotic drugs (as most do), the court must make a “substituted judgment” decision on behalf of the respondent. See Standard 7:03 (Substituted Judgment for Treatment with Antipsychotic Drugs).
If the requested medical treatment for mental illness involves treatment other than with antipsychotic drugs (e.g., electroconvulsive treatment), the court must proceed “according to the applicable legal standards for such other medical treatment.” Section 8B does not authorize the District Court to override a competent committed person’s refusal of medical treatment.
Section 8b procedures
Treatment authorization procedures under § 8B apply only to incompetent persons who have been involuntarily committed because of mental illness. The commitment may have been ordered before the § 8B petition is filed or it may be sought at the same time the § 8B petition is filed.
When both a commitment petition and a § 8B petition are filed at the same time, the court must treat them as two separate proceedings, each involving distinct issues and evidentiary matters. The § 8B petition may be considered only after the court has entered an order committing the respondent to a mental health facility or Bridgewater State Hospital.
In considering a § 8B petition, the court has a dual inquiry. First, it must determine the committed respondent’s competency – his or her capacity to make an informed decision about the proposed medical treatment for mental illness. The fact that the respondent has been committed because of mental illness is not determinative of his or her competency to make treatment decisions. If the respondent is capable of making an informed treatment decision, the court must dismiss the petition.
Second, if the respondent is determined to be incapable of making an informed treatment decision, the court must then consider whether to authorize the proposed medical treatment by applying the appropriate legal standard, depending on the nature of the treatment. Most petitions seek authorization to treat the respondent’s mental illness with antipsychotic drugs, which requires the court to make a substituted judgment decision.
The elements required to authorize a requested treatment order must be proved by a preponderance of the evidence and the court must make detailed findings.
If the proposed medical treatment is authorized, it must be administered in accordance with a written treatment plan approved by the court. The treatment authorization continues in effect until modified or vacated, or until any specified expiration date, or until the commitment to which the § 8B order is linked expires, whichever occurs first. See Standards 11:01 (Scope and Duration of Authorized § 8B Treatment Plan) and 11:02 (Modifying or Vacating § 8B Treatment Authorizations). The court is responsible for monitoring compliance with the treatment plan, although it may delegate the actual monitoring responsibilities to a guardian or other designated person.
Pretrial criminal defendants
A § 8B petition concerning a respondent with pending criminal charges may implicate the respondent’s right to have the jury observe his or her demeanor in an unmedicated state. See Commonwealth v. Louraine, 390 Mass. 28, 32-38 (1983) (defendant offering insanity defense entitled to have jury observe him in unmedicated condition, but this may waive right to be tried only if competent). See also Sell v. United States, 539 U.S. 166 (2003) (constitutionally permissible to involuntarily administer antipsychotic medication to render defendant competent to stand trial if medically appropriate and it significantly furthers governmental interests in particular case); Commonwealth v. Gurney, 413 Mass. 97 (1992) (even where no insanity defense, where relevant to defendant’s demeanor and mental condition during trial, defendant entitled to offer evidence about antipsychotic medication being taken at time of trial). For an analysis of how various Federal circuits have applied the Sell factors, see Michelle R. Cruz, United States v. Ruiz-Gaxiola: Setting the Standard For Medicating Defendants Involuntarily in the Ninth Circuit, 41 GOLDEN GATE U. L. REV. (2011).
Medical intervention without a District Court authorization
There are several ways in which an involuntarily committed mentally ill person may receive medical intervention for mental illness without District Court authorization. A nonexhaustive list would include at least:
Voluntary treatment.
Any person who is competent (i.e., capable of informed medical treatment decisions), including a person who is committed because of mental illness, can give voluntary consent to treatment.
Probate and Family Court.
A guardian appointed by the Probate and Family Court does not have authority to consent to the involuntary administration of antipsychotic medication to the ward, but may request a Probate and Family Court judge to authorize such treatment in a substituted judgment proceeding. G.L. c. 190B, § 5-306A. A guardian may consent to medical treatment for the ward other than antipsychotic medication, § 5-309(a), unless such authority has been limited by the Probate and Family Court, § 5-306(c), or is displaced by a prior health care proxy, § 5-309(e).
Medication restraint.
A physician may authorize the immediate administration of antipsychotic or other drugs for restraint purposes in an emergency where a committed person poses an imminent threat of physical harm to self or others and there is no less intrusive alternative. See the commentary to Standard 7:03 (Substituted Judgment for Treatment with Antipsychotic Drugs).
Emergency treatment.
A physician may authorize the immediate administration of antipsychotic drugs to an incompetent committed person if necessary to prevent an immediate, substantial and irreversible deterioration of a serious mental illness. Authorization to continue treatment must be sought either through an § 8B petition in the District Court or a Rogers petition in the Probate and Family Court, both of which require a substituted judgment. See the commentary to Standard 7:03 (Substituted Judgment for Treatment with Antipsychotic Drugs).
7:01 Related Probate and Family Court proceedings
Before commencing the hearing on a § 8B petition to authorize medical treatment for mental illness, the court should determine from the petitioner whether there is any prior or pending involvement by the Probate and Family Court regarding the respondent’s medical treatment for mental illness.
If there was a prior Probate and Family Court determination regarding the same respondent and the same or related issues of competency and treatment, the District Court should be informed of and give careful consideration to that earlier decision.
If there is a Probate and Family Court treatment plan currently in effect, the District Court should refer the petitioner seeking to change that plan back to the Probate and Family Court that issued it, unless immediate action is necessary.
Under the Uniform Probate Code, a guardian appointed by the Probate and Family Court does not have authority to consent to the involuntary administration of antipsychotic medication to an incapacitated ward, but a guardian may request a Probate and Family Court judge to authorize such treatment in a substituted judgment proceeding. G.L. c. 190B, § 5-306A. A guardian may consent to medical treatment for the ward other than antipsychotic medication, § 5-309(a), unless such authority has been limited by the court, § 5-306(c), or is overridden by a health care proxy, § 5-309(e).
The Probate and Family Court may not grant a guardian authority to admit the ward to a mental hospital. § 5-309(f). Instead, commitment proceedings must be initiated in the District Court under G.L. c. 123, §§ 7 & 8.
Commentary
In Guardianship of Pamela, 401 Mass. 856 (1988), the Supreme Judicial Court held that competency to make informed treatment decisions always involves current competency, and therefore a Probate and Family Court judge considering a Rogers petition to authorize medical treatment was not bound by a District Court judge’s contrary § 8B decision eight months earlier, where there were changed circumstances and new evidence.
The Pamela decision implies that a petitioner may file a § 8B petition in the District Court notwithstanding having previously filed an unsuccessful petition to authorize medical treatment in the Probate and Family Court. For that reason, the District Court should inquire about any prior Probate and Family Court action regarding the respondent’s medical treatment for mental illness. While the earlier ruling is not binding, the court should examine the petition carefully if current circumstances do not appear to support a different outcome, no new evidence is presented, and the petition seems to be an attempt to forum-shop.
Where a § 8B petition is filed solely to modify a treatment plan authorized by the Probate and Family Court that is currently in effect, jurisdiction should be declined and the petitioner directed to the Probate and Family Court that issued that treatment plan, unless circumstances require immediate action.
The Uniform Probate Code uses the term “incapacitated” (G.L. c. 190B, §§ 1-201[22] & 5-101[9]) rather than the traditional term “incompetent” found in case law and court rules, but in this context the meaning is the same.
If the respondent has been transferred to a different facility, the court that ordered the treatment plan should continue to monitor it, and any modification should be sought from that court. When that treatment order expires, any subsequent order should be sought from the court division with jurisdiction over the facility.
7:02 Competency to make informed treatment decisions
The petitioner must prove by a preponderance of the evidence that the respondent is incompetent, i.e., he or she is incapable of making informed decisions about medical treatment for mental illness.
The court should give no weight to the commitment petition or order in its consideration of the respondent’s capacity to make informed treatment decisions.
The court must make specific written findings on the respondent’s competency to give or withhold consent to medical treatment for mental illness.
Commentary
The court’s first task in adjudicating a § 8B petition is to determine if the respondent is competent. “[A] distinct adjudication of incapacity to make treatment decisions (incompetence) must precede any determination to override patients’ rights to make their own treatment decisions.” Rogers v. Commissioner of Dept. of Mental Health, 390 Mass. 489, 498 (1983). Only when a person is found to be incapable of giving informed consent to medical treatment may the court consider authorizing such treatment. The court must deny a petition to authorize treatment if it finds the respondent competent, i.e., capable of making informed decisions about treatment.
Like all other persons, the respondent is presumed competent. See Fazio v. Fazio, 375 Mass. 394, 403 (1978) (a person’s capacity to “think or act for himself as to matters concerning his personal health, safety, and general welfare . . . is presumed unless specifically adjudicated otherwise”). Additionally, by statute a person may not be deemed incompetent to “manage his or her affairs” solely by reason of admission or commitment to a mental health facility for care or treatment. G.L. c. 123, § 24. “[A] mental patient has the right to make treatment decisions and does not lose that right until the patient is adjudicated incompetent by a judge through incompetence proceedings.” Rogers, 390 Mass. at 497.
In order to overcome the presumption of competence, the court must find by a preponderance of the evidence that the respondent is incapable of making informed treatment decisions. See Guardianship of Roe, 383 Mass. 415 (1981). See also Standard 10:00 (Standard of Proof in § 8B Hearings).
The importance of adequate and consistent subsidiary findings was underscored in Lane v. Fiasconaro, 1995 Mass. App. Div. 125 (N. Dist.), in which the Appellate Division reversed a judge’s finding of incompetency. The judge’s ultimate finding was that the respondent “denies that she is presently ill, . . . does not understand the nature of her illness [or] the risks of nontreatment, and [her] delusions and mental illness are persistent and impair her judgment,” but the judge’s subsidiary findings indicated only that the respondent had an awareness of her condition and her need for medical treatment, and that the single physician witness had opined that she was improving and was competent.
Clinical research in this area suggests that the test of competency to make informed treatment decisions may involve several distinct inquiries. See Applebaum & Grisso, Assessing Patients’ Capacities to Consent to Treatment, 319 New Eng. J. Med. 1635-1638 (1988); Beck, Right to Refuse Antipsychotic Medication: Psychiatric Assessment and Legal Decision-Making, 11 Mental & Phys. Disability L. Rep. 368-372 (1987).
For example, the respondent’s information-gathering ability should be assessed, essentially asking whether the respondent is able to obtain and perceive facts about his or her condition, the need for treatment, and the possible methods and outcomes of the different treatments available. “While knowledge is evidence of competence, ignorance is not necessarily evidence of incompetence.” Beck, supra at 369. A treating clinician shares responsibility in this area by assisting the respondent in obtaining the facts needed to arrive at an informed decision. Therefore, the court may properly inquire about the clinician’s efforts to inform the respondent about his or her case.
Another important factor is the respondent’s capacity to appreciate or rationally understand information that has been gathered. Id. For example, a respondent who denies his or her mental illness in the face of uncontroverted evidence may not appreciate the need for treatment, and may not be able to fairly weigh its risks and benefits. Guardianship of Roe, 411 Mass. 666 (1992). On the other hand, a respondent who refuses medication because of adverse side effects experienced by or known to him may be able to appreciate certain facts about treatment and arrive at an informed decision.
These factors in and of themselves are not conclusive, but they may assist the court in its deliberations. Each case requires an inquiry into the particular individual’s decision-making process. Id. The decision itself, or its objective wisdom, is not the focus; what is important is the process by which the respondent arrived at his or her decision.
7:03 Substituted judgment for treatment with antipsychotic drugs
If an § 8B petition requests authorization for treatment with antipsychotic drugs and the respondent is found incapable of making informed treatment decisions, the court must make a substituted judgment determination. G.L. c. 123, § 8B (a)(iv).
“Substituted judgment” differs from “best interests” and does not permit the court to substitute its own judgment for that of the respondent. Instead, a substituted judgment means that the court must attempt to determine what the respondent would choose to do regarding the proposed treatment plan if he or she were competent. This should include consideration of the respondent’s expressed preferences and religious convictions, how the impact on the respondent’s family would affect his or her decision, the effect of the proposed treatment on the respondent’s medical condition or pregnancy, the severity and probability of any adverse side effects, the respondent’s prognosis with and without such treatment, the availability of alternative treatments, and any other relevant factors.
The court may authorize medical treatment with antipsychotic drugs for mental illness if it determines that the respondent, if competent, would accept the treatment.
If the court determines that the respondent, if competent, would refuse the proposed treatment, the court must deny the petition, even if that decision is unwise in the judgment of the petitioner or others, unless the court finds that there is a countervailing State interest sufficient to override the respondent’s refusal.
The court must support its decision with specific and detailed findings.
The court may not allow a request for contingent authority to administer antipsychotic drugs based upon hypothetical future conditions. A substituted judgment decision is premature where a change in circumstances could reasonably occur.
Authorizing medical treatment for mental illness other than by antipsychotic drugs may require application of a standard other than substituted judgment. See Standard 7:04 (Authorizing Treatments Other than Antipsychotic Drugs).
Commentary
In making a substituted judgment decision, the court does not substitute its judgment for that of the respondent in the sense that it determines what it believes will be best for the respondent. Rather, the court must stand in place of the respondent and attempt to decide as the respondent would if competent. Thus, the court must identify as closely as possible the respondent’s unique wants and needs regarding the proposed treatment plan. Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728 (1977). “Individual choice is determined not by the vote of the majority but by the complexities of the singular situation viewed from the unique perspective of the person called on to make the decision.” Id. at 746-747. It is therefore primarily a subjective inquiry into at least the following six factors identified in Guardianship of Roe, 383 Mass 415 (1981), and Rogers v. Commissioner of Dept. of Mental Health, 390 Mass. 489 (1983):
“At least six factors must be considered by the judge in arriving at the substituted judgment decision . . . .
[(1) Patient’s expressed preferences.] “First, the judge must examine the patient’s expressed preferences regarding treatment. If made while competent, such a preference is entitled to great weight unless the judge finds that the patient would have changed his opinion after reflection or in altered circumstances. Even if he lacked the capacity to make his treatment decisions at the time, his expressed preference must be treated as a critical factor in the determination of his best interests, since it is the patient’s true desire that the court must ascertain.
[(2) Patient’s religious convictions.] “Second, the judge must evaluate the strength of the incompetent patient’s religious convictions, to the extent that they may contribute to his refusal of treatment. The question to be addressed is whether certain tenets or practices of the incompetent’s faith would cause him individually to reject the specific course of treatment proposed for him in his present circumstances . . . . While in some cases an individual’s beliefs may be so absolute and unequivocal as to be conclusive in the substituted judgment determination, in other cases religious practices may be only a relatively small part of the aggregated considerations.
[(3) How impact on family would affect patient’s decision.] “Third, the impact of the decision on the ward’s family must be considered . . . . [T]his factor is primarily relevant when the patient is part of a closely knit family. The consideration of impact on the family includes the cost in money and time that the family must bear, together with any desire of the patient to minimize that burden. In addition, a patient may be faced with two treatments, one of which will allow him to live at home with his family and the other of which will require the relative isolation of an institution. The judge may then consider what affection and assistance the family may offer. However, the judge must be careful to ignore the desires of institutions and persons other than the incompetent except in so far as they would affect his choice.
[(4) Probability of adverse side effects.] “Fourth, the probability of adverse side effects must be considered. This includes an analysis of the severity of these side effects, the probability that they would occur, and the circumstances in which they would be endured.
[(5) Prognosis without treatment.] “Fifth, the prognosis without treatment is relevant to the substituted judgment decision. It is probable that most patients would wish to avoid a steadily worsening condition. However, the judge must again reach an individualized, subjective conclusion regarding this factor, after examining it from the unique perspective of the incompetent.
[(6) Prognosis with treatment.] “Sixth, the prognosis with treatment must be examined. The likelihood of improvement or cure enhances the likelihood that an incompetent patient would accept treatment, but it is not conclusive.
[Other factors.] “Finally, the judge may review any other factors which appear relevant. After weighing the factors, the judge must reach a substituted-judgment treatment decision.”
Rogers, 390 Mass. at 505-506 (citations and internal quotes omitted).
If criminal charges are pending against the respondent, the court should ensure that the respondent’s criminal counsel has been notified of the § 8B proceeding. The implications that the decision would have on a pending criminal case may affect the decision that the respondent would make if competent.
The court must weigh all these considerations and determine what the respondent’s judgment would be regarding the proposed treatment plan if he or she were competent.
Such a substituted judgment is constitutionally required but not always easy:
“The question presented by the [respondent’s] refusal of antipsychotic drugs is only incidentally a medical question. Absent an overwhelming State interest, a competent individual has the right to refuse such treatment. To deny this right to persons who are incapable of exercising it personally is to degrade those whose disabilities make them wholly reliant on other, more fortunate, individuals. In order to accord proper respect to this basic right of all individuals, we feel that if an incompetent individual refuses antipsychotic drugs, those charged with his protection must seek a judicial determination of substituted judgment. No medical expertise is required in such an inquiry, although medical advice and opinion is to be used for the same purposes and sought to the same extent that the incompetent individual would, if he were competent. We emphasize that the determination is not what is medically in the [respondent’s] best interests – a determination better left to those with extensive medical training and experience. The determination of what the incompetent individual would do if competent will probe the incompetent individual’s values and preferences, and such an inquiry, in a case involving antipsychotic drugs, is best made in courts of competent jurisdiction . . . .” Roe, 383 Mass. at 434-435 (citations and internal quotes omitted).
“The doctrine of substituted judgment is the means by which incompetents may exercise their right to refuse or terminate treatment . . . . Lack of a prior expressed intention regarding medical treatment does not bar use of the doctrine of substituted judgment. We recognize that in situations in which there is an attempt to use substituted judgment for a never-competent person, it is a legal fiction. It is the legal mechanism by which society (at least in Massachusetts) attempts to vindicate liberty interests, albeit through a legal fiction. We are also aware that therefore the substituted judgment doctrine is difficult to apply. That difficulty, however, provides inadequate justification for denying its benefits. While it may be necessary to rely to a greater degree on objective criteria in the case of a never-competent person, the effort to bring the substituted judgment into step with the values and desires of the affected individual must not, and need not, be abandoned.” Guardianship of Doe, 411 Mass. 512, 518 (1992) (citations and internal quotes omitted).
As the case law emphasizes, the court’s responsibility to determine, and normally to implement, what the respondent would decide if he or she were competent goes to the heart of the fundamental constitutional right that the proceeding is designed to ensure. This may sometimes require the court, however uncomfortably, to respect the respondent’s right to make a “bad” decision:
“Where the medical evidence, unchallenged at every turn and unimpeachable in its sincerity, shows that treatment will maintain or regain competence, this is a weighty factor to be considered by the judge as it would be considered by the affected individual. It is not conclusive, however. If the judge feels that the ‘best interests’ of the [respondent] demand one outcome but concludes that the [respondent’s] substituted judgment would require another, then, in the absence of an overriding State interest, the substituted judgment prevails. In short, if an individual would, if competent, make an unwise or foolish decision, the judge must respect that decision as long as [the judge] would accept the same decision if made by a competent individual in the same circumstances.” Roe, 383 Mass. at 449 n.20.
The court may not grant contingent authority to administer antipsychotic drugs if certain potential events occur where those possibilities are sufficiently uncertain in the circumstances as to be hypothetical. In such cases, a substituted judgment decision is premature. “A substituted judgment determination may only be made upon direct application of a party with standing who actually seeks the administration of the medication. A premature decision will needlessly burden all involved and will make any substituted judgment determination less accurate.” Roe, 383 Mass. at 432 & n.8.
Overriding state interest
“There are circumstances in which the fundamental right to refuse extremely intrusive treatment must be subordinated to various State interests” which are sufficient to override the respondent’s refusal. Roe, 383 Mass at 433.
In the substituted judgment context, the Supreme Judicial Court has recognized at least four countervailing State interests:
- the preservation of life,
- the protection of interests of innocent third parties,
- the prevention of suicide, and
- the maintenance of the ethical integrity of the medical profession.
The Court has “been willing to consider other State interests as well, particularly when the State interests are specifically related to the right to privacy.” Brophy v. New England Sinai Hosp., 398 Mass. 417, 433-434 (1986). However, the Court has specifically refused to hold that “the State ha[s] a vital interest in seeing that its residents function at the maximum level of their capacity and that this interest outweighs the rights of the individual,” noting that “the State, in certain circumstances, might have a generalized parens patriae interest in removing obstacles to individual development, [but] this general interest does not outweigh the fundamental individual rights” to refuse extremely intrusive treatment. Roe, 383 Mass at 449.
To date the Supreme Judicial Court has recognized at least two situations where State interests are sufficient to override a committed person’s refusal to consent to antipsychotic drugs. Neither of them, however, have involved a judicial substituted judgment determination:
Medication restraint.
A physician may authorize the immediate administration of antipsychotic drugs for restraint purposes in an emergency where the patient poses an imminent threat of physical harm to himself or others and there is no less intrusive alternative. Such emergency cases do not require prior court approval through a § 8B petition in the District Court or a Rogers petition in the Probate and Family Court. See Rogers, 390 Mass. at 507-511. Such restraint is limited to “occurrence or serious threat of extreme violence, personal injury, or attempted suicide.” 104 Code Mass. Regs. § 3.12(2), adopted pursuant to G.L. c. 123, § 21.
Emergency treatment.
A physician may authorize the immediate administration of antipsychotic drugs to an incompetent patient if necessary to prevent an “immediate, substantial and irreversible deteriorization of a serious mental illness.” Rogers, 390 Mass. at 511-512. In such cases, if the physician believes that the drug should be continued and the patient objects, and is believed to be incompetent to make a treatment decision, then court approval must be sought through an § 8B or Rogers petition under the substituted judgment test. If the court concludes that the person, if competent, would refuse medication, it appears that the State’s parens patriae concerns would not be a sufficient State interest to override the respondent’s right to refuse treatment. “Obviously, if a patient is found to be competent, the doctors may not forcibly medicate that patient over his objection, despite the fact that the patient’s condition may deteriorate.” Rogers, 390 Mass. at 512 n.30.
Commissioner of Correction v. Myers, 379 Mass. 255 (1970), recognized a State interest sufficient to override a competent prisoner’s refusal of intrusive medical treatment where a mentally competent prisoner refused dialysis treatment to protest his placement in a medium, as opposed to a minimum, security prison. The Court held that the State’s interest in orderly prison administration “tip[ped] the balance in favor of authorizing treatment without consent.” Id. at 263. The prison setting in which the Myers case arose is unique, and it may not offer any guidance for § 8B proceedings.
For general information about the properties of commonly prescribed psychoactive medications, see Department of Mental Health, Medication Information Manual (2010).
7:04 Authorizing treatments other than antipsychotic drugs
If a § 8B petition requests authorization for medical treatment for mental illness other than by antipsychotic drugs, and the court finds the respondent incompetent, the court should then decide whether it must apply a substituted judgment standard. This should be determined based on the following factors:
- the intrusiveness of the proposed treatment,
- the possibility of adverse side effects,
- the presence or absence of an emergency precluding a judicial determination,
- the nature and extent of prior judicial involvement, and
- the likelihood of conflicting interests.
Applying this test, it appears that a § 8B petition requesting authorization for electroconvulsive therapy (ECT) for an incompetent respondent would require a substituted judgment decision as well as a showing that there is no less intrusive alternative. See Lane v. Fiasconaro, 1995 Mass. App. Div. 125 (N. Dist.) (since § 8B provides that treatments other than antipsychotic medications must be “necessary,” petitioner must also show that there is no less intrusive effective alternative than ECT).
The District Court has no authority to authorize medical treatment for an incompetent committed person unless that treatment is for mental illness. The court may authorize medical treatments that are ancillary to treatments for mental illness, such as drugs that are prescribed to prevent or treat side effects of antipsychotic drugs.
Commentary
Rogers v. Commissioner of Dept. of Mental Health, 390 Mass. 489, 490 (1983), which required the court to make a substituted judgment decision in deciding whether to authorize medical treatment for mental illness for an incompetent committed person, was expressly limited to treating mental illness with antipsychotic drugs. However, in granting the District Court jurisdiction over petitions for medical treatment for mental illness, the Legislature did not limit § 8B to treatment by antipsychotic drugs. Like Rogers, it requires the court to use the substituted judgment standard in authorizing antipsychotic drug treatment. G.L. c. 123, § 8B(a)(ii).
However, it also permits the court to authorize “such other medical treatment as may be necessary for the treatment of mental illness,” using “the applicable legal standards.” § 8B(a)(iii).
Rogers did not offer guidance regarding any specific medical treatments for mental illness other than antipsychotic drugs, but reaffirmed that the five factors set out above, derived from Guardianship of Roe, 383 Mass. 415 , 435-436 (1981), are the appropriate considerations in determining whether a judicial substituted-judgment decision is required. Rogers, 390 Mass. at 503. A court adjudicating a § 8B petition to authorize medical treatment for mental illness other than antipsychotic drugs should apply those five factors in determining whether a substituted judgment standard must be employed. If a substituted judgment determination is not required, it would appear that the traditional “best interests” test should be applied.
The Standard suggests that application of the five-point test should result in a finding that a substituted judgment determination is required to authorize electroconvulsive therapy (ECT). The Appellate Division apparently reached that conclusion in dicta in Lane v. Fiasconaro, 1995 Mass. App. Div. 125, 128 n.2 (N. Dist.), and also suggested that “[i]n view of the requirement in Section 8B that treatment other than with antipsychotic medications be ‘necessary’ and the concern . . . with the existence of an ‘emergency,’ it would appear that before ECT may be authorized, the petitioner would be obligated to establish that the patient could not be adequately treated with medications or other alternatives, and that the patient specifically required the more intrusive intervention of ECT.” See also G.L. c. 123, § 23 (“[A] mentally ill person in the care of the [Department of Mental Health] shall have the following legal and civil rights: . . . to refuse shock treatment . . . ; provided, however, that any of these rights may be denied for good cause by the superintendent or his designee and a statement of the reasons for any such denial entered in the treatment record of such person”).
The Standard does not attempt to determine which medical treatments for mental illness (other than antipsychotic medication and electroconvulsive therapy) require court authorization before they may be administered to an incompetent committed person. The common law requires guardians to obtain prior judicial authorization only before consenting to extraordinary medical treatment. See Matter of Moe, 385 Mass. 555 , 559 (1982). Cf. G.L. c. 190B, § 5-306A(a) (requiring court authorization for guardian “to consent to treatment for which substituted judgment determination may be required” but not specifying which). Section 8B is not on its face limited to “extraordinary” medical treatment. It permits the court to “authorize according to the applicable legal standards such other medical treatment as may be necessary for the treatment of mental illness.” However, it is unlikely that this wording was intended to require court authorization even for ordinary medical treatments for mental illness, which would represent a significant change in the law.
The District Court has no jurisdiction under § 8B (or otherwise) to authorize medical treatment for an incompetent committed person unless that treatment is for mental illness. Thus, an § 8B petition cannot be used to obtain a “Do Not Resuscitate” order or to authorize treatments for a patient’s medical conditions other than mental illness. However, medical treatments that are ancillary or adjunctive to treatments for mental illness (such as drugs prescribed to prevent or treat the side effects of antipsychotic drugs) appear to be within the court’s § 8B jurisdiction. Any such associated measures should be taken into account in the court’s substituted judgment determination regarding the antipsychotic drug.
7:05 Incompetent patients who agree to proposed treatment
Since incompetent persons cannot give informed consent to medical treatment, a court determination is required not only for respondents who refuse proposed treatment, but also for those who agree to proposed treatment but who are not capable of giving informed consent (so-called “passive acceptors”).
Commentary
“Because incompetent persons cannot meaningfully consent to medical treatment, a substituted judgment by a judge should be undertaken for the incompetent patient even if the patient accepts the medical treatment.” Rogers v. Commissioner of Dept. of Mental Health, 390 Mass. 489, 500 n.14 (1983). See also Guardianship of Linda, 401 Mass. 783 (1988) (within judge’s discretion to condition authorization of antipsychotic medication for incompetent respondent who was then voluntarily accepting such medication on his continued consent and to require a new substituted judgment determination if he began to refuse).