Riese v. St. Mary’s Hospital and Medical Center,
259 Cal. Rptr. 669, 774 P.2d 698 (1989)
Key Issue: “[A]bsent a judicial determination of incompetence, antipsychotic drugs cannot be administered to involuntarily committed mental patients in non-emergency situations without their informed consent.
In 1987 the California State Court of Appeals overruled thetraditional interpretation of California’s Lanterman-Petris-Short Act of 1968. It had beenassumed that the Act permitted involuntary treatment for those detained under an initialthree 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 othersor gravely disabled). The Court of Appeals found that these patients had the right toexercise informed consent to the use of antipsychotic drugs, absent an emergency, and,should they reject medication, “a judicial determination of their incapacity to maketreatment decisions” was necessary before they could be involuntarily treated.
This was a class action suit brought by the California ACLUin the name of Eleanor Riese to establish a right to refuse medication for patientshospitalized under the LPS Act. Riese had first been hospitalized for chronicschizophrenia in 1968 at the age of 25, responded to the anti-psychotic drug Mellaril, andupon discharge in 1969 had moved into her own apartment. In 1981 she ceased taking hermedication (she had bladder problems apparently stemming from the Mellaril) and washospitalized again.
She was in and out of hospitals several times in the nextfew years, with psychiatrists trying several different medications. In 1985 she wasadmitted again, initially as a voluntary patient, but when she refused medication, herstatus was changed to that of an involuntary patient.
The trial court upheld the traditional interpretation ofLPS and ruled that there was no right to refuse medication. But the Court of Appealsreversed.(Its decision was appealed to the California Supreme Court which refused to hearit, allowing the Court of Appeals decision to stand.)
The Court of Appeals dismissed the argument of thedefendant hospital which the court termed “the cornerstone” of thehospital’s case that because LPS did not explicitly grant a right to refuseantipsychotic medication, such a right did not exist. (The hospital pointed out that apatient’s right to refuse ECT and psychosurgery was specified in the LPS Act and arguedthat the Act’s failure to assert such a right in relation to antipsychotic medicationmeant the legislature did not intend there be such a right.) A statutory omission, saidthe court, could not be treated as an exclusion: “throughout the statutory scheme theLegislature repeatedly admonishes that the failure of LPS to explicitly confer aparticular right upon mentally ill persons cannot provide a basis upon which to denyit.”
The judges zeroed in on the issue of presumed competence ofmental patients. Mental patients were presumed competent unless found incompetent by acourt. In their decision they quoted a section of the LPS Act: “No person may bepresumed to be incompetent because he or she has been evaluated or treated for mentaldisorder…regardless of whether such evaluation or treatment was voluntarily orinvoluntarily received.”
Moreover, said the court, since treatment withantipsychotic drugs “has profound effects…on mind and body,” the right torefuse treatment with these drugs “clearly falls within the recognized right torefuse 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 CaliforniaSupreme Court declared the right to informed consent to medical treatment was aconstitutional right which could only be denied if the patient was incompetent, in whichcase the patient’s “authority to consent is transferred to a guardian or the closestavailable relative.”) Because this right is guaranteed by the Constitution and thelaws of the State of California, the Court of Appeals ruled, “it cannot be deniedthose confined under LPS absent a specific statutory limitation.” Accordingly thejudges ruled, “absent a judicial determination of incompetence, antipsychotic drugscannot be administered to involuntarily committed mental patients in non-emergencysituations without their informed consent.” Furthermore, they ruled, “The courtis not to decide such medical questions as whether the proposed therapy is definitelyneeded or is the least drastic alternative available, but may consider such issues only aspertinent to assessment of the patient’s ability to consent to the treatment.”
Riese v. St. Mary’s Hospital was recognized at the time asa highly important case — evidence for this is the large number of amicus briefs (over14) filed with the California Supreme Court when it was believed that court would reviewthe Court of Appeals decision. Many of these amicus briefs came from organizations outsideCalifornia, ranging from the American Psychiatric Association, the American PsychologicalAssociation, the American Orthopsychiatric Association to national patients rights groups.The reason Riese was seen as a particularly important right to refuse treatment case wasbecause California had seemed a singularly unpromising state in which to establish such aright. In passing the then revolutionary Lanterman-Petris-Short Act in 1968, thelegislature had attempted to strike a balance: the commitment period would be brief (nomore than 17 days in all except in highly circumscribed special circumstances), butpsychiatrists would be allowed to treat the patient in that time span.
Indeed LPS specified that a person detained for evaluationand treatment “shall receive whatever treatment and care as his or her conditionrequires for the full period that he or she is held.” Even advocates of a right torefuse treatment had assumed LPS failed to provide that right. In 1986, a year prior tothe Court of Appeals decision in Riese, patients’ rights groups opposed amendments of theLPS 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.”
The California Court of Appeals decision in Riese took awaywhatever slight rationale adhered to the LPS Act. No other state set an arbitrary timelimit for hospitalization. The 17 days established by LPS was sucked out of the air, withnot a shred of evidence ever offered that this was the amount of time in which severelyill people could be restored to functioning in the community. The only positive feature ofthe Act was the intensive treatment it permitted in that arbitrarily defined period.
The Court of Appeals clearly was influenced (and in itsdecision 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 oftreatment allowed under California law and the Act’s clear intention that treatment beadministered in that period.
In practice grafting the right to refuse on the LPS timelimit has meant that it becomes very difficult to treat refusing patients at all. Itgenerally takes five days to get a Riese hearing so that almost a third of the time iswasted right there. California psychiatrist Barbara Silver describes a series of resultsof the Riese decision similar to what has occurred in other states where there is a rightto 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, tothe 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 incompetentand permits involuntary treatment, an incompetent patient can easily beat the system.
California psychiatrist Dr. Stephen Haynes describes apatient of his who prevailed in a Riese hearing when she said she feared tardivedyskinesia (although she did not suffer from it) and correctly identified it as a movementproblem with the tongue. He kept her in the hospital, untreated, for the full 17 days andthen 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 Riesehearing, again she said the magic words, “tardive dyskinesia,” and again sheprevailed. At the end of that 17 days she was released and was rehospitalized again a fewdays later: same grounds. This time she may have herself tired of the game and decided notto attend the Riese hearing. Because she did not attend, the hearing officer allowedtreatment to proceed.
As elsewhere, the Riese case cloaked anti-treatmentideology in the language of civil rights, in his case the right to informed consent tomedical treatment. As the California Alliance for the Mentally Ill’s Ted Hutchinsonpointed out, if those bringing the suit genuinely had sought informed consent, existingadministrative procedures could have been used.
The LPS Act provides that each patient on a three day holdreceive a prompt, “multidisciplinary” evaluation of any “medical,psychological, educational, social, financial, and legal conditions as may appear toconstitute a problem.” The question of whether one has the capacity to give informedconsent is clearly a legal condition that may constitute a problem.
Existing law thus offered a framework for addressing theissue of informed consent ostensibly at the heart of the Riese case. Where the evaluationteam found the capacity to give informed consent lacking (informal estimates put thatproportion extremely high), a substitute decision-maker, preferably a family member, couldbe appointed to discuss the treatment plan with the psychiatrist. This would ensureinformed consent (or a substitute decision-maker, giving families a role) for eachmentally ill person, not just those who refused treatment. But although the CaliforniaAlliance for the Mentally Ill presented this proposal in an amicus brief, it was ignoredby the courts.
It is noteworthy that federal funds were used in this case.In 1987, California’s federally funded Protection and Advocacy Program (its officialpurpose is to prevent neglect and abuse of the mentally ill) accepted Eleanor Riese as aclient, and served as co-counsel.