In the Matter of Guardianship of Richard Roe III, 421 N.E. Rep. 2d 40
Key Issue: "decision maker is called upon to ignore all but the implementation of the values and preferences of the ward."
Massachusetts' highest court, the Supreme Judicial Court, ruled that when a mentally ill individual who is incompetent to make his own treatment decisions refuses treatment, only a court can decide if he is to be treated, and must do so on the basis of substituted judgment, i.e. what the individual would choose, given what is known of his values and preferences, if he were competent.
A bright and popular student in junior high school, Richard Roe (a pseudonym) became ill in high school. Expelled from private school, he dropped out of public high school and became uncontrollable at home, physically assaulting the members of his family and threatening to kill his mother. Following his arrest in 1979 on charges of receiving stolen property, he was sent to Northampton State Hospital, where he was diagnosed as suffering from schizophrenia. Released, he was arrested again a few months later for assault and battery and back in the hospital was assaultive, attacking another patient. Although according to Dr. Jeffrey Geller, then a psychiatrist at Northampton State, Roe responded well to medication, he now refused it.
Northampton Hospital, then radically cutting back its patient population, prepared to release Roe to his parents who were willing to take him home, but wanted to make sure that he could be made to take the medication that controlled his symptoms. The hospital assumed that arranging this would be a simple matter because the federal district court in another case (the Rogers case, to be discussed fully elsewhere) had ruled that patients found in a court hearing to be incompetent to make their own treatment decisions could have treatment decisions made for them by a court appointed guardian. In the opinion of the hospital's psychiatrists, Roe was clearly incompetent. However, since the federal court decision in the Rogers case applied to patients at Boston State Hospital, and Roe would be an outpatient, the hospital advised Roe's family to go to court to make Richard's father his guardian with the power to decide if he should take medication prescribed for him.
The probate judge ruled Roe was mentally ill and incompetent, appointed his father as his guardian and agreed that in light of the "Rogers" decision he had authority to determine his son's treatment. The case was then appealed by the guardian ad litem who had been appointed to represent Richard Roe.
The Massachusetts Supreme Judicial Court found the evidence that Richard Roe was incompetent "more than adequate" and said it was convinced Richard's judgment was so severely impaired that there was a strong likelihood he would inflict serious injury on himself or others. The judges concluded he needed a guardian and his father was the appropriate choice but could not make treatment decisions. The Court ruled that only a judge could conduct the "detached but passionate investigation" necessary to decide if Richard should take medication.
The Court ruled the judge should base his decision on what the incompetent mental patient would want to do, if he were competent (taking into account the fact he is incompetent). The court identified six factors the judge should consider, among them "the ward's expressed preferences regarding treatment," "the ward's religious beliefs," and "the impact upon the ward's family," if there was evidence the patient desired to minimize the burden he placed on them.
The Court explained why Richard's father was not qualified to decide if Richard should take the medications prescribed for him. "We intend no criticism of the guardian [Richard's father] when we say that few parents could make the substitute judgment determination by its nature a self-centered determination in which the decision maker is called upon to ignore all but the implementation of the values and preferences of the ward when the ward, in his present condition, is living at home with other children."
The Court's opinion was highly critical of anti-psychiatric drugs, describing them as "extraordinary" medical treatment, "powerful enough to immobilize mind and body." It said "the impact of the chemicals upon the brain is sufficient to undermine the foundations of personality." The opinion also dwelt at length upon side effects: "Although... the intended effects of antipsychotic drugs are extreme, their unintended effects are frequently devastating and often irreversible."
The Massachusetts Supreme Judicial Court had ruled that the decision whether to treat an incompetent mentally ill individual should not be on the basis of what was medically in his best interests, or had the likelihood of restoring him to competence. Instead, it should be on the basis of "substituted judgment," i.e. what a judge concluded the individual would prefer, based on his earlier attitudes and behavior.
The case assumed broader significance. This was because, after the Massachusetts Supreme Judicial Court issued its opinion, the U.S. Supreme Court remanded the long-running, multi-million dollar, federal Rogers case, involving the right to refuse treatment of civilly committed hospitalized patients, which had gone up to it on appeal, to be decided in light of Roe. The Supreme Court did so on the grounds that the judges in Roe had carved out a right to refuse treatment on the basis of state law that went beyond anything it could find on the basis of U.S. constitutional law.
And so, what started out as a minor case could Richard Roe's guardian decide on his treatment became the basis for requiring that, except in emergency situations, judicial hearings must be held in Massachusetts before a non-consenting hospitalized mental patient can be treated, with the decision to be made on the basis of "substituted judgment."
In the Matter of Guardianship of Richard Roe III was a profoundly anti-family decision. It never seemed to occur to the Court that Richard Roe's family, despite his serious illness, wanted to take care of him and that making it feasible for them to do so should be society's concern. According to the Court, Richard Roe's father lacked the "detachment" to decide whether his son should be medicated. But it was precisely because he cared what happened to his son and wanted him restore to competence that he was a desirable guardian of his son's interests. Moreover, the whole family had an interest in eliminating the psychotic thought processes that had led Richard to attack them in the past and could make living with him impossible. The judges refused to consider that other children in the family had a legitimate interest in living without fear of violence from a severely ill, uncontrollable family member. Such interests were viewed as "selfish."
While the judges felt they were upholding the interests of the ill individual at the expense of all others, in fact their decision made the ill individual the greatest loser for it is he who is most dependent on the support of others. Unable to secure for him the treatment he needs, the family, for its own protection, is forced to cast him adrift.
In the case of Richard Roe, according to the family lawyer, the court decision "blew the family to pieces." In theory, they could have applied for a substitute judgment decision by the court, enabling Richard to be medicated. But feeling it was obvious the decision would go against them, the family gave up. The parents divorced, and Richard became a semi-street person constantly involved with the law for petty infractions.
In their opinion, the judges also displayed astonishing ignorance concerning psychiatric medications, which do not "undermine the foundations of personality" as they claimed, but reduce hallucinations, disordered thought processes, agitation, withdrawal and other psychotic symptoms that can much better be described as undermining personality. Anti-psychotic drugs -- particularly the older ones, then the only ones available -- do indeed have side effects, but the judges almost totally ignored the positive effects of medications, while reciting every possible adverse effect.
The notion of "substituted judgment" (originally
developed by the Massachusetts court to guide decision-making in the case of severely
mentally retarded individuals) is wrong-headed in the case of people with NBD. The goal
should be restoring the ill person to competency, something medication will do in most
cases, and based on his earlier response to anti-psychotic drugs, clearly would have
accomplished in the case of Richard Roe. What the tortuous process (identifying the choice
"which would be made by the incompetent person, if that person were competent, but
taking into account the present and future incompetency of the individual as one of the
factors which would necessarily enter into the decision-making process of the competent
person") amounts to, as psychiatrists Paul Appelbaum and Thomas Gutheil have pointed
out, is simply "the substitution of the preferences of the decision-maker for those
of the incompetent person." In the Roe case, it was the judgment of the state's
highest court whose members were woefully ignorant of the nature of psychiatric drugs and
had obtained their false notions from law journal articles (which they liberally cite)
transmitting the Szaszian notions of the mental health bar to the bench.
The information on Mental Illness Policy Org. is not legal advice or medical advice. Do not rely on it. Discuss with your lawyer or medical doctor. Mental Illness Policy Org was founded in February 2011 and recently received 501(c)(3) status. In order to maintain independence MIPO does not accept any donations from companies in the health care industry or government. That makes us dependent on the generosity of people who care about these issues. If you can support our work, please send a donation to Mental Illness Policy Org., 50 East 129 St., Suite PH7, New York, NY 10035. Thank you. For more information, http://mentalillnesspolicy.org.