Rennie v. Klein, 462 F. Supp. 1131(D.N.J. 1978),
suppl., 476 F. Supp. 1294 (D.N.J. 1979), modified, 653
F.2d 836 (3d Cir. 1981), vacated and remanded, 458
U.S. 1119(1982), on remand, 720 F.2d 266 (3d Cir.1983)
Key Issue: An involuntarilycommitted mental patient has a qualified constitutional right to refuse psychotropic medication
An involuntarily committed patient who has not been found incompetent, absent an emergency, has a qualified right to refuse psychotropic medication.New Jersey’s administrative policies, which provide for a second psychiatric opinion in the case of refusing patients, give adequate scope for the exercise of that right to satisfy constitutional requirements.
This case, the first to establish an involuntarily committed patient’s right to refuse medication, was brought in December 1977 by 38 year old John Rennie, a patient at Ancora State Hospital in New Jersey. A former pilot and flight instructor, described as highly intelligent, Rennie did not show signs of mental illness until he was 31. His first hospitalization occurred in 1973 and in the following years he became a revolving door patient, with one of the reasons, trial judge Stanley Brotman noted, “his failure to continue taking medications after he has left the hospital’s custody.” Variously diagnosed as suffering from paranoid schizophrenia andmanic-depression, Rennie had persistent religious delusions (he thought he was Christ) andsuicidal ideas. His eighth hospitalization was initiated after he threatened to killPresident Ford. On subsequent hospitalizations he became increasingly abusive andassaultive.
In late December 1977, during his twelfth hospitalization,a lengthy one beginning on August 10, 1976 (in which various drugs were tried with uneven results), Rennie sued in federal district court to enjoin the hospital from administering psychotropic medications to him in the absence of an emergency. (Office of the PublicAdvocate brought the case one branch of state government was suing another.) Judge Brotman describes the precipitating factors in his decision. Earlier in the month, Rennie had become homicidal and staff felt his condition was deteriorating. To prevent Rennie from harming other patients, staff and himself, the treatment team administered prolixin decanoate, an injectable long-acting drug, on the basis that, given his history of failing to take medication once released, it would be the easiest drug on which to maintain him post-release. Following initiation of the prolixin regime, Rennie’s condition improved markedly.
Judge Brotman responded to Rennie’s appeal for an injunction by a compromise: rather than enjoining the hospital from giving him any medication, he insisted the prolixin be lowered to a minimum maintenance dosage, which staff psychiatrists considered insufficient. He then conducted fourteen days of hearings between January 13 and April 28, 1978.
Several months after issuing his initial ruling (asserting a right to refuse treatment grounded in a constitutional right to privacy), Judge Brotman expanded the case into a class action, including all involuntarily committed patients at the five mental health facilities operated by the state and held an additional seventeen days of hearings.
Federal District Judge Stanley Brotman dismissed the argument of Rennie’s counsel that forced medication violated the First Amendment (by interfering with his mental processes) and the Eighth Amendment (constituting cruel and unusual punishment). However, he ruled that the right to refuse treatment can be based on an “emerging right of privacy” broad enough to include the “right to protect one’s mental processes from governmental interference.” Judge Brotman asserted that the uncertainty of psychiatric diagnoses gave weight toward “leaving the final decision with the patient rather than deferring to doctors.” “Whether the potential benefits are worth the risks is a uniquely personal decision which, in the absence of a strong state interest, should be free from state coercion.”
Nevertheless, said Judge Brotman, the right to refuse was not absolute. Other patients in the hospital had the right to protection from harm from an assaultive patient like Rennie. The state’s parens patriae powers also came into play, but only to the extent a fact finder determined that the patient’s refusal was based on the underlying illness. The more the patient lacked insight the greater the impetus to override his right to autonomy.
In March 1978, in an attempt to provide a mechanism for alimited right to refuse treatment, the Division of Mental Health promulgatedAdministrative Bulletin 78-3, which provided that a refusing patient (who had not beenfound legally incompetent) would be entitled to review of his case by the treatment teamand then, if he still refused, by the medical director or his designee. Particularly whenthere was disagreement, the medical director was authorized to retain an independentpsychiatric consultant.
In his decision Judge Brotman indicated he was notsatisfied with this mechanism, stipulating that a refusing patient was entitled to a dueprocess hearing conducted by an independent psychiatrist. Judge Brotman also asserted thatthe principle of the least restrictive alternative should be extended to medication:hearing officers should insist that the least restrictive medications should be triedprior to more intrusive medications. The basis on which medications would be ranked inorder of intrusiveness is not specified, although Judge Brotman clearly found lithium lessintrusive than the psychotropic drugs.
On expanding the case into a class action suit severalmonths after his initial decision, Judge Brotman reiterated his finding that allinvoluntary patients in New Jersey state hospitals had a right to a due process hearingbefore drugs could be administered against their will and this time established specificprocedures. Prior to being given medication, patients would have to sign consent formsthat explained their side effects. Hospitals had to employ “patient advocates”who would act as “informal counsel” to patients wishing to refuse treatment inhearings before independent psychiatrists. Judge Brotman established a category of”functionally incompetent” patients — patients who were not legally incompetentbut could be certified by their physician as “unable to provide knowledgeable consentto treatment.”
Judge Brotman’s decisions were appealed. The Third CircuitCourt upheld the existence of a qualified constitutional right to refuse treatment as wellas Judge Brotman’s order that the least restrictive alternative concept by applied tochoice of medications. On the other hand, it determined that the state’s administrativepolicy (reflected in Bulletin 78-3) was constitutionally sufficient (and the hearingsdemanded by Judge Brotman were not required).
The U.S. Supreme Court granted certiorari but then remandedthe case to the Third Circuit with instructions to reconsider it in light of the highcourt’s decision in Youngberg v. Romeo (which concerned a severely retarded young man’s”right to treatment).” In part the Third Circuit reaffirmed its earlier findingsthat there was a qualified right to refuse and New Jersey’s administrative bulletin madeadequate provision for the exercise of that right. But it ruled that in light of theSupreme Court’s decision in Youngberg, least restrictive alternative was not a conceptthat could be mandated for treatment. The Supreme Court had called for treatment based on”accepted professional judgment” in Youngberg, and the Third Circuit ruled thatthis meant psychiatrists should be free to make treatment decisions on that basis.
The Third Circuit remanded to the district court where itall began, which then simply ordered all parties to comply with Administrative Bulletin78-3.
At the end of the day (when the review process was over)Rennie v. Klein established that an involuntarily committed, legally competent patient whorefused medication had a right to professional medical review of the treatingpsychiatrist’s decision. In contrast to the Rogers case, which provided for judicialreview, Rennie left the decision-making process to medical professionals.
The end-result of the Rennie case was to establish areasonable mechanism for dealing with patients who refused treatment. That mechanism wasestablished by the Department of Mental Health through its Administrative Bulletin 78-3 atthe beginning of the case, and if Judge Brotman had accepted it at the time, theend-result would have been achieved at the outset and not required five years oflitigation. Critics have pointed out that the method has flaws — it gives the finaldecision to a person who often has only a single contact with the patient and who willhave no responsibility for the patient’s care. But proponents have argued that in practicethe New Jersey model leads to more “negotiations” between patient andpsychiatrist, that is, psychiatrists are more ready to listen to the patient’s complaintsabout medication and adapt to them, sometimes with lower doses, sometimes with trials ofalternative medication. Unfortunately, despite the Supreme Court’s backing for theprofessional judgment standard, it is not the Rennie, but the Rogers model, which shiftspsychiatric decision-making from the medical to the legal profession, that has becomeprevalent.
But if the Rennie case had a reasonable conclusion, at thetrial level it was a nightmare, showing how judicial micro-management of what was properlymedical decision-making produced chaos. While he made obeisance to the effectiveness ofanti-psychotic medications (which was repeatedly affirmed by medical experts during thehearings), in his rulings Judge Brotman was clearly far more sensitive to the negativeside effects of medications than to the destructive impact of the illnesses theyaddressed. Indeed he said in his decision (in the class action suit) that as a result ofthe right to refuse “a significant number of patients will receive less or nomedication, frequently to their benefit.” It was this underlying attitude that ledhim to mandate the principle of least restrictive alternative for medication decisions(fortunately eliminated on final remand to the Third Circuit). Psychiatrists were not togive patients the most effective treatment but the “least intrusive” one. In theRennie case, Judge Brotman in effect became chief psychiatrist, calling together variouspsychiatrists who had examined Rennie, picking and choosing between their recommendations,always with the goal of selecting what he arbitrarily decided was the “leastintrusive” medication.
As Rennie’s condition deteriorated, psychiatrists ran backand forth to Judge Brotman. Rennie grew progressively worse and eventually rejectedlithium (which he agreed to take for awhile) as well. By November 1978 he was acutelypsychotic, manic and assaultive, and spent most of his time in restraints. In December1978, a year after the case was brought, the hospital was administering thorazine on anemergency basis (he had also become so dehydrated doctors testified his life was indanger). This time, when Rennie again sought a restraining order against the hospital’smedicating him, Judge Brotman decided that Rennie was not just motivated by a rationaldislike of side effects of the medication but by “an irrational desire to rebelagainst the hospital and its doctors.” He determined there was no less restrictivealternative to thorazine “other than constant restraints.” For the hospital, forother patients, for staff, and above all for Rennie himself, Judge Brotman’s yearlongexperiment of wearing a white coat over his black robes in pursuit of the chimera of theleast restrictive treatment was a disaster.
There was one good feature of Judge Brotman’s decision thathas unfortunately not subsequently been widely utilized. Judge Brotman established acategory of “functionally incompetent” patients. These were patients who had notbeen found incompetent by the courts but whom the psychiatrist determined were unable tomake their own treatment decisions because of lack of insight into their illness. This isprecisely the situation of a great many psychiatric patients and recognizing this andproviding a simple way to identify and then treat these patients would go a long way inreducing the arbitrary roadblocks that have been thrown up to treatment for those most inneed of it.