Riese v. St. Mary's Hospital and Medical Center,
259 Cal. Rptr. 669, 774 P.2d 698 (1989)

In 1987 the California State Court of Appeals overruled the traditional interpretation of California's Lanterman-Petris-Short Act of 1968. It had been assumed that the Act permitted involuntary treatment for those detained under an initial three day hold (for evaluation and treatment) and subsequent 14 day hospitalization (if, after those 72 hours, the patient is "certified" as dangerous to self or others or gravely disabled). The Court of Appeals found that these patients had the right to exercise informed consent to the use of antipsychotic drugs, absent an emergency, and, should they reject medication, "a judicial determination of their incapacity to make treatment decisions" was necessary before they could be involuntarily treated.

Background

This was a class action suit brought by the California ACLU in the name of Eleanor Riese to establish a right to refuse medication for patients hospitalized under the LPS Act. Riese had first been hospitalized for chronic schizophrenia in 1968 at the age of 25, responded to the anti-psychotic drug Mellaril, and upon discharge in 1969 had moved into her own apartment. In 1981 she ceased taking her medication (she had bladder problems apparently stemming from the Mellaril) and was hospitalized again.

She was in and out of hospitals several times in the next few years, with psychiatrists trying several different medications. In 1985 she was admitted again, initially as a voluntary patient, but when she refused medication, her status was changed to that of an involuntary patient.

The Decision

The trial court upheld the traditional interpretation of LPS and ruled that there was no right to refuse medication. But the Court of Appeals reversed.(Its decision was appealed to the California Supreme Court which refused to hear it, allowing the Court of Appeals decision to stand.)

The Court of Appeals dismissed the argument of the defendant hospital – which the court termed "the cornerstone" of the hospital's case – that because LPS did not explicitly grant a right to refuse antipsychotic medication, such a right did not exist. (The hospital pointed out that a patient's right to refuse ECT and psychosurgery was specified in the LPS Act and argued that the Act's failure to assert such a right in relation to antipsychotic medication meant the legislature did not intend there be such a right.) A statutory omission, said the court, could not be treated as an exclusion: "throughout the statutory scheme the Legislature repeatedly admonishes that the failure of LPS to explicitly confer a particular right upon mentally ill persons cannot provide a basis upon which to deny it."

The judges zeroed in on the issue of presumed competence of mental patients. Mental patients were presumed competent unless found incompetent by a court. In their decision they quoted a section of the LPS Act: "No person may be presumed to be incompetent because he or she has been evaluated or treated for mental disorder...regardless of whether such evaluation or treatment was voluntarily or involuntarily received."

Moreover, said the court, since treatment with antipsychotic drugs "has profound effects...on mind and body," the right to refuse treatment with these drugs "clearly falls within the recognized right to refuse medical treatment." (That right had been established in California in 1972, four years after the passage of the LPS Act, in Cobbs v. Grant, in which the California Supreme Court declared the right to informed consent to medical treatment was a constitutional right which could only be denied if the patient was incompetent, in which case the patient's "authority to consent is transferred to a guardian or the closest available relative.") Because this right is guaranteed by the Constitution and the laws of the State of California, the Court of Appeals ruled, "it cannot be denied those confined under LPS absent a specific statutory limitation." Accordingly the judges ruled, "absent a judicial determination of incompetence, antipsychotic drugs cannot be administered to involuntarily committed mental patients in non-emergency situations without their informed consent." Furthermore, they ruled, "The court is not to decide such medical questions as whether the proposed therapy is definitely needed or is the least drastic alternative available, but may consider such issues only as pertinent to assessment of the patient's ability to consent to the treatment."

Significance

Riese v. St. Mary's Hospital was recognized at the time as a highly important case -- evidence for this is the large number of amicus briefs (over 14) filed with the California Supreme Court when it was believed that court would review the Court of Appeals decision. Many of these amicus briefs came from organizations outside California, ranging from the American Psychiatric Association, the American Psychological Association, the American Orthopsychiatric Association to national patients rights groups. The reason Riese was seen as a particularly important right to refuse treatment case was because California had seemed a singularly unpromising state in which to establish such a right. In passing the then revolutionary Lanterman-Petris-Short Act in 1968, the legislature had attempted to strike a balance: the commitment period would be brief (no more than 17 days in all except in highly circumscribed special circumstances), but psychiatrists would be allowed to treat the patient in that time span.

Indeed LPS specified that a person detained for evaluation and treatment "shall receive whatever treatment and care as his or her condition requires for the full period that he or she is held." Even advocates of a right to refuse treatment had assumed LPS failed to provide that right. In 1986, a year prior to the Court of Appeals decision in Riese, patients' rights groups opposed amendments of the LPS Act that required giving patients detailed information on side effects on drugs, complaining that the bill did not create any right to refuse treatment even for "competent involuntary patients."

Comment:

The California Court of Appeals decision in Riese took away whatever slight rationale adhered to the LPS Act. No other state set an arbitrary time limit for hospitalization. The 17 days established by LPS was sucked out of the air, with not a shred of evidence ever offered that this was the amount of time in which severely ill people could be restored to functioning in the community. The only positive feature of the Act was the intensive treatment it permitted in that arbitrarily defined period.

The Court of Appeals clearly was influenced (and in its decision liberally quoted from) the right to refuse cases in Massachusetts (Rogers v. Commissioner) and New York (Rivers v. Katz), but made no mention of the brief span of treatment allowed under California law and the Act's clear intention that treatment be administered in that period.

In practice grafting the right to refuse on the LPS time limit has meant that it becomes very difficult to treat refusing patients at all. It generally takes five days to get a Riese hearing so that almost a third of the time is wasted right there. California psychiatrist Barbara Silver describes a series of results of the Riese decision similar to what has occurred in other states where there is a right to refuse treatment: increased use of seclusion and restraints, warehousing of patients, inappropriate release of patients to avoid the cumbersome and time-consuming hearings, injury to other patients and staff and patient deterioration, for example, dehydration, to the point it becomes life-threatening. And while, in California as in other jurisdictions, in the overwhelming majority of cases the hearing officer finds the patient incompetent and permits involuntary treatment, an incompetent patient can easily beat the system.

California psychiatrist Dr. Stephen Haynes describes a patient of his who prevailed in a Riese hearing when she said she feared tardive dyskinesia (although she did not suffer from it) and correctly identified it as a movement problem with the tongue. He kept her in the hospital, untreated, for the full 17 days and then released her. Four days later she was rehospitalized on the same grounds as before: she had threatened the lives of children living next door to her. Again, there was a Riese hearing, again she said the magic words, "tardive dyskinesia," and again she prevailed. At the end of that 17 days she was released and was rehospitalized again a few days later: same grounds. This time she may have herself tired of the game and decided not to attend the Riese hearing. Because she did not attend, the hearing officer allowed treatment to proceed.

As elsewhere, the Riese case cloaked anti-treatment ideology in the language of civil rights, in his case the right to informed consent to medical treatment. As the California Alliance for the Mentally Ill's Ted Hutchinson pointed out, if those bringing the suit genuinely had sought informed consent, existing administrative procedures could have been used.

The LPS Act provides that each patient on a three day hold receive a prompt, "multidisciplinary" evaluation of any "medical, psychological, educational, social, financial, and legal conditions as may appear to constitute a problem." The question of whether one has the capacity to give informed consent is clearly a legal condition that may constitute a problem.

Existing law thus offered a framework for addressing the issue of informed consent ostensibly at the heart of the Riese case. Where the evaluation team found the capacity to give informed consent lacking (informal estimates put that proportion extremely high), a substitute decision-maker, preferably a family member, could be appointed to discuss the treatment plan with the psychiatrist. This would ensure informed consent (or a substitute decision-maker, giving families a role) for each mentally ill person, not just those who refused treatment. But although the California Alliance for the Mentally Ill presented this proposal in an amicus brief, it was ignored by the courts.

It is noteworthy that federal funds were used in this case. In 1987, California's federally funded Protection and Advocacy Program (its official purpose is to prevent neglect and abuse of the mentally ill) accepted Eleanor Riese as a client, and served as co-counsel.