Rogers v. Okin 478
Key Issue: "committed mental 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 be forcibly medicated, except in emergency situations. When a court finds a patient to be incompetent, the judge, based on substituted judgment, decides if he is to be treated.
This class action suit, originally brought in 1975, grew out of organizing efforts by the Mental Patients Liberation Front at Boston State Hospital. Judi Chamberlin, a leader in the Front, has written that "many of the patients who became plaintiffs in the suit were members of a weekly patients' rights group at the hospital in which members of the Mental Patients Liberation Front met with interested patients." There were seven named plaintiffs -- ranging in age from 52 to 20 -- who were hospitalized on two separate wards (the Austin and May units). The suit sought to enjoin the hospital, except in emergencies, from medicating them against their will or putting them in isolation. Most had a history of revolving door admissions: 38 year old Betty Bybel was admitted to the Austin Unit on 28 occasions between January 1973 and April 1975. Twenty-year-old Donna Hunt was first admitted at 15: falling ill with encephalitis at the age of three, she suffered organic brain damage. Fifty two year old Harold Warner had been held at Bridgewater State Hospital for the criminally insane for 17 years for assault and battery on a 12 year old girl. Rubie Rogers, by whose name the case came to be known, was in her late 30s, with a history of admissions and discharges beginning in 1965. For the four years previous to the suit she had been a voluntary patient at the hospital.
Greater Boston Legal Services (a legal services group financed by the federally funded Legal Services Corporation), which represented the patients, filed the case as a civil rights action (under Section 1983) and sought compensatory and punitive damages from members of the hospital staff.
The trial began in December 1977 and concluded at the end of January 1979, after 72 trial days involving more than 50 witnesses, 8,000 pages of transcripts plus 2300 pages of post- trial briefs. Federal district court Judge Joseph Tauro handed down his decision in October 1979. The case, however, would not finally be resolved until November 29, 1983 (8 years from the time it was brought) after going on appeal to three additional courts (one of them twice).
At the trial level, Judge Tauro ruled that under Massachusetts law committed mental patients were presumed to be competent to manage their own affairs (dispose of property etc.), yet "such rights pale in comparison to the intimate decision as to whether to accept or refuse psychotropic medication." He asserted that in a non-emergency "it is an unreasonable invasion of privacy, and an affront to basic concepts of human dignity to permit the forced injection of mind altering drugs..." Although the state had a duty to make treatment available to mental patients, it had no duty to impose it on "the competent involuntary patient who prefers to refuse medication, regardless of its potential benefit."
In his opinion Judge Tauro took note of the defendant psychiatrists' argument that it was the state's parens patriae obligation to provide treatment for patients who had been committed for the purpose of treatment, even in the face of their opposition to it. He dismissed this argument on the grounds that "the State's interest in protecting the safety of the general public is the justification for commitment of mental patients." Involuntary treatment, Judge Tauro ruled, "is not necessary to protect the general public, since the patient has already been quarantined by commitment."
Judge Tauro accepted the argument that first amendment rights were at stake, which were contained in the brief of the plaintiffs' attorney, Richard Cole. "Realistically," Judge Tauro ruled "the capacity to think and decide is a fundamental element of freedom" and whatever power the Constitution granted our government "involuntary mind control is not one of them." And psychotropic drugs, he asserted were "indisputably mind-altering."
The committed mental patient, said Judge Tauro, had the right to make treatment decisions until he was adjudicated incompetent by a judge. At this point, he noted, the parens patriae right of the state could be exercised and a guardian appointed by the court to make decisions, including treatment decisions, for the patient.
Judge Tauro did not grant the plaintiffs' claims for damages, however. He ruled that the staff had adhered to a generally accepted standard of care and could not know of a right to refuse treatment before it had been established by a court [his].
Judge Tauro's decision was appealed, and while the Court of Appeals for the First Circuit (Mills v. Rogers) basically upheld the lower court, it expanded the definition of "emergency situation." Judge Tauro had defined an emergency as when "there is a substantial likelihood of...extreme violence, personal injury or attempted suicide." The Court of Appeals redefined emergency to include cases where the patient needed medication to prevent "further suffering of that patient or the rapid worsening of his clinical condition."
The Supreme Court granted certiorari but then remanded the case back to the Court of Appeals in the light of Roe (see our analysis of Roe case). The Appellate Court asked the Massachusetts Supreme Judicial Court, which had decided Roe, for its opinion on the central issues in the case. The Massachusetts Supreme Judicial Court basically reiterated its position in Roe. That decision required that a court (not a guardian, as in Judge Tauro's decision) make the decision whether an incompetent patient should be treated, based on "substituted judgment," i.e. what the patient would have desired, were he competent, taking into account he is not competent. Moreover, the substituted judgement decision required a full evidentiary hearing, with counsel for both sides, independent examiners and expert witnesses if requested.
The Rogers case initiated a model that would be copied by a number of other states, requiring court hearings before a patient may be medicated without his consent. This has imposed significant costs and delays in treatment, although the court in the end very rarely upholds the patient's refusal.
The Rogers case was marked throughout by a nihilistic attitude 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 attorney who actually brought the suit, argued there was little value in treatment, since even those who supposedly "benefited" from it "continue to be unproductive," "a burden to their families," and "are as dependent and alienated as those confined to an institution." Judge Tauro looked on the drugs as impediments to freedom of thought (hence his assertion that they violated the First Amendment) without recognizing that mental illness was mind-altering, and the drugs mind-restorative. Both Judge Tauro and the Appeals Court emphasized the patient's right to freedom (the freedom to reject unwanted treatment) without recognizing the nature of mental illness -- that psychosis was itself a prison and treatment could open the path to genuine 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's interest only extended to "quarantining" the mentally ill who posed a danger to the 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 undocumented are the numbers of seriously ill refusing patients who are quietly released to the streets and shelters. Nor does the wasteful and unwieldy system even work as intended. Judges are supposed to determine if the refusing patient is competent and then be guided by the principle of "substituted judgment" in deciding if the incompetent patient is to be treated. But mental health law expert Alexander Brooks has pointed out that the various courts that issued opinions in the Rogers case never explained what evidence judges should look for to determine if a patient was incompetent. Without guidance on this crucial matter, 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 of allowing patient protests to be considered -- the mandatory second psychiatric opinion instituted by the Rennie case in New Jersey (to be discussed elsewhere).
For states that have a adopted a Rogers model, a simple reform 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 treatment decisions at the same time he commits him. Utah's mental health statutes require that a judge find a patient incompetent to make his own treatment decisions as a precondition for commitment.
This ideally should be the law in all states and becomes a necessary 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 mental hospital in most states automatically stripped the individual of all his civil rights. In U.S. Senate hearings in 1961 it was argued that the mentally ill and their families were reluctant to seek treatment early because of the legal consequences that could haunt them later. Certainly it was a wise reform to ensure that mentally ill individuals kept their civil rights. But the individual who is committed is clearly incompetent to make his own decisions respecting his need for treatment -- if he understood his need for treatment why would he need to be involuntarily committed? Finding him incompetent in this regard is thus a logical precondition for commitment, and this needs to be established by law.
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