Rogers v. Okin 478F.Supp.1342(D.Mass.1979), 634
F.2d 650(1st Cir.1980); Mills v. Rogers 457
U.S.291(1982); Rogers v. Commissioner of Mental
Health, 390 Mass.489, 458 N.E.2d 308 (1982)
Key Issue: “committedmental patient assumed competent to make treatment decisions in non-emergencies”
Committed mental patients, both voluntary and involuntary,are assumed by state law to be competent to manage their own affairs and hence cannot beforcibly medicated, except in emergency situations. When a court finds a patient to beincompetent, the judge, based on substituted judgment, decides if he is to be treated.
This class action suit, originally brought in 1975, grewout of organizing efforts by the Mental Patients Liberation Front at Boston StateHospital. Judi Chamberlin, a leader in the Front, has written that “many of thepatients who became plaintiffs in the suit were members of a weekly patients’ rights groupat the hospital in which members of the Mental Patients Liberation Front met withinterested patients.” There were seven named plaintiffs — ranging in age from 52 to20 — who were hospitalized on two separate wards (the Austin and May units). The suitsought to enjoin the hospital, except in emergencies, from medicating them against theirwill or putting them in isolation. Most had a history of revolving door admissions: 38year old Betty Bybel was admitted to the Austin Unit on 28 occasions between January 1973and April 1975. Twenty-year-old Donna Hunt was first admitted at 15: falling ill withencephalitis at the age of three, she suffered organic brain damage. Fifty two year oldHarold Warner had been held at Bridgewater State Hospital for the criminally insane for 17years for assault and battery on a 12 year old girl. Rubie Rogers, by whose name the casecame to be known, was in her late 30s, with a history of admissions and dischargesbeginning in 1965. For the four years previous to the suit she had been a voluntarypatient at the hospital.
Greater Boston Legal Services (a legal services groupfinanced by the federally funded Legal Services Corporation), which represented thepatients, filed the case as a civil rights action (under Section 1983) and soughtcompensatory and punitive damages from members of the hospital staff.
The trial began in December 1977 and concluded at the endof January 1979, after 72 trial days involving more than 50 witnesses, 8,000 pages oftranscripts plus 2300 pages of post- trial briefs. Federal district court Judge JosephTauro handed down his decision in October 1979. The case, however, would not finally beresolved until November 29, 1983 (8 years from the time it was brought) after going onappeal to three additional courts (one of them twice).
At the trial level, Judge Tauro ruled that underMassachusetts law committed mental patients were presumed to be competent to manage theirown affairs (dispose of property etc.), yet “such rights pale in comparison to theintimate decision as to whether to accept or refuse psychotropic medication.” Heasserted that in a non-emergency “it is an unreasonable invasion of privacy, and anaffront to basic concepts of human dignity to permit the forced injection of mind alteringdrugs…” Although the state had a duty to make treatment available to mentalpatients, it had no duty to impose it on “the competent involuntary patient whoprefers to refuse medication, regardless of its potential benefit.”
In his opinion Judge Tauro took note of the defendantpsychiatrists’ argument that it was the state’s parens patriae obligation to providetreatment for patients who had been committed for the purpose of treatment, even in theface of their opposition to it. He dismissed this argument on the grounds that “theState’s interest in protecting the safety of the general public is the justification forcommitment of mental patients.” Involuntary treatment, Judge Tauro ruled, “isnot necessary to protect the general public, since the patient has already beenquarantined by commitment.”
Judge Tauro accepted the argument that first amendmentrights were at stake, which were contained in the brief of the plaintiffs’ attorney,Richard Cole. “Realistically,” Judge Tauro ruled “the capacity to think anddecide is a fundamental element of freedom” and whatever power the Constitutiongranted our government “involuntary mind control is not one of them.” Andpsychotropic drugs, he asserted were “indisputably mind-altering.”
The committed mental patient, said Judge Tauro, had theright to make treatment decisions until he was adjudicated incompetent by a judge. At thispoint, he noted, the parens patriae right of the state could be exercised and a guardianappointed by the court to make decisions, including treatment decisions, for the patient.
Judge Tauro did not grant the plaintiffs’ claims fordamages, however. He ruled that the staff had adhered to a generally accepted standard ofcare and could not know of a right to refuse treatment before it had been established by acourt [his].
Judge Tauro’s decision was appealed, and while the Court ofAppeals for the First Circuit (Mills v. Rogers) basically upheld the lower court, itexpanded the definition of “emergency situation.” Judge Tauro had defined anemergency as when “there is a substantial likelihood of…extreme violence, personalinjury or attempted suicide.” The Court of Appeals redefined emergency to includecases where the patient needed medication to prevent “further suffering of thatpatient or the rapid worsening of his clinical condition.”
The Supreme Court granted certiorari but then remanded thecase back to the Court of Appeals in the light of Roe (see our analysis of Roe case). TheAppellate Court asked the Massachusetts Supreme Judicial Court, which had decided Roe, forits opinion on the central issues in the case. The Massachusetts Supreme Judicial Courtbasically reiterated its position in Roe. That decision required that a court (not aguardian, as in Judge Tauro’s decision) make the decision whether an incompetent patientshould be treated, based on “substituted judgment,” i.e. what the patient wouldhave desired, were he competent, taking into account he is not competent. Moreover, thesubstituted judgement decision required a full evidentiary hearing, with counsel for bothsides, independent examiners and expert witnesses if requested.
The Rogers case initiated a model that would be copied by anumber of other states, requiring court hearings before a patient may be medicated withouthis consent. This has imposed significant costs and delays in treatment, although thecourt in the end very rarely upholds the patient’s refusal.
The Rogers case was marked throughout by a nihilisticattitude toward treatment. The Mental Patients Liberation Front, which sparked the suit,denied there was such a thing as mental illness. Richard Cole, the legal services attorneywho actually brought the suit, argued there was little value in treatment, since eventhose who supposedly “benefited” from it “continue to beunproductive,” “a burden to their families,” and “are as dependent andalienated as those confined to an institution.” Judge Tauro looked on the drugs asimpediments to freedom of thought (hence his assertion that they violated the FirstAmendment) without recognizing that mental illness was mind-altering, and the drugsmind-restorative. Both Judge Tauro and the Appeals Court emphasized the patient’s right tofreedom (the freedom to reject unwanted treatment) without recognizing the nature ofmental illness — that psychosis was itself a prison and treatment could open the path togenuine autonomy.
The court gave the time-honored doctrine of parens patriae the state’s duty to intervene to help the helpless — short shrift. The state’sinterest only extended to “quarantining” the mentally ill who posed a danger tothe public.
A number of studies have documented how obtaining so-called”Rogers orders” overruling patient refusals involves high monetary costs,delays, and shift of staff time from clinical care to paperwork. What goes undocumentedare the numbers of seriously ill refusing patients who are quietly released to the streetsand shelters. Nor does the wasteful and unwieldy system even work as intended. Judges aresupposed to determine if the refusing patient is competent and then be guided by theprinciple of “substituted judgment” in deciding if the incompetent patient is tobe treated. But mental health law expert Alexander Brooks has pointed out that the variouscourts that issued opinions in the Rogers case never explained what evidence judges shouldlook for to determine if a patient was incompetent. Without guidance on this crucialmatter, judges, studies have shown, in practice primarily focus on how”dangerous” the patient is, to him or others. And then in practically all cases,they forget about “substituted judgment” and simply order treatment.
The Rogers model ignored a much more sensible way ofallowing patient protests to be considered — the mandatory second psychiatric opinioninstituted by the Rennie case in New Jersey (to be discussed elsewhere).
For states that have a adopted a Rogers model, a simplereform offers the best solution to the manifold problems that model has caused — namely,to require the judge to evaluate the patient’s capacity to make his own treatmentdecisions at the same time he commits him. Utah’s mental health statutes require that ajudge find a patient incompetent to make his own treatment decisions as a precondition forcommitment.
This ideally should be the law in all states and becomes anecessary reform in all states that have adopted a Rogers model.
It must be remembered that the patient’s assumed”competence,” which is the basis for the right to refuse, is a legal fiction,originally intended to facilitate treatment. Up until the 1960s, commitment to a mentalhospital in most states automatically stripped the individual of all his civil rights. InU.S. Senate hearings in 1961 it was argued that the mentally ill and their families werereluctant to seek treatment early because of the legal consequences that could haunt themlater. Certainly it was a wise reform to ensure that mentally ill individuals kept theircivil rights. But the individual who is committed is clearly incompetent to make his owndecisions respecting his need for treatment — if he understood his need for treatment whywould he need to be involuntarily committed? Finding him incompetent in this regard isthus a logical precondition for commitment, and this needs to be established by law.