Substitute Judgement For Mentally Ill: Richard Roe Case Summary - Mental Illness Policy Org
Substitute Judgement For Mentally Ill: Richard Roe Case Summary2017-02-01T11:11:44+00:00

In the Matter of Guardianship of Richard Roe III, 421 N.E. Rep. 2d 40

Key Issue:  “decisionmaker 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, RichardRoe (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 anotherpatient. Although according to Dr. Jeffrey Geller, then a psychiatrist at NorthamptonState, Roe responded well to medication, he now refused it.

Northampton Hospital, then radically cutting back itspatient population, prepared to release Roe to his parents who were willing to take himhome, but wanted to make sure that he could be made to take the medication that controlledhis symptoms. The hospital assumed that arranging this would be a simple matter becausethe federal district court in another case (the Rogers case, to be discussed fullyelsewhere) had ruled that patients found in a court hearing to be incompetent to maketheir own treatment decisions could have treatment decisions made for them by a courtappointed guardian. In the opinion of the hospital’s psychiatrists, Roe was clearlyincompetent. However, since the federal court decision in the Rogers case applied topatients at Boston State Hospital, and Roe would be an outpatient, the hospital advisedRoe’s family to go to court to make Richard’s father his guardian with the power to decideif he should take medication prescribed for him.

The probate judge ruled Roe was mentally ill andincompetent, 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 casewas then appealed by the guardian ad litem who had been appointed to represent RichardRoe.

The Decision:

The Massachusetts Supreme Judicial Court found the evidencethat Richard Roe was incompetent “more than adequate” and said it was convincedRichard’s judgment was so severely impaired that there was a strong likelihood he wouldinflict serious injury on himself or others. The judges concluded he needed a guardian andhis father was the appropriate choice – but could not make treatment decisions. TheCourt ruled that only a judge could conduct the “detached but passionateinvestigation” necessary to decide if Richard should take medication.

The Court ruled the judge should base his decision on whatthe incompetent mental patient would want to do, if he were competent (taking into accountthe fact he is incompetent). The court identified six factors the judge should consider,among them “the ward’s expressed preferences regarding treatment,” “theward’s religious beliefs,” and “the impact upon the ward’s family,” ifthere was evidence the patient desired to minimize the burden he placed on them.

The Court explained why Richard’s father was not qualifiedto decide if Richard should take the medications prescribed for him. “We intend nocriticism of the guardian [Richard’s father] when we say that few parents could make thesubstitute judgment determination – by its nature a self-centered determination inwhich the decision maker is called upon to ignore all but the implementation of the valuesand preferences of the ward – when the ward, in his present condition, is living athome with other children.”

The Court’s opinion was highly critical of anti-psychiatricdrugs, describing them as “extraordinary” medical treatment, “powerfulenough to immobilize mind and body.” It said “the impact of the chemicals uponthe brain is sufficient to undermine the foundations of personality.” The opinionalso dwelt at length upon side effects: “Although… the intended effects ofantipsychotic drugs are extreme, their unintended effects are frequently devastating andoften irreversible.”


The Massachusetts Supreme Judicial Court had ruled that thedecision whether to treat an incompetent mentally ill individual should not be on thebasis of what was medically in his best interests, or had the likelihood of restoring himto 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 attitudesand behavior.

The case assumed broader significance. This was because,after the Massachusetts Supreme Judicial Court issued its opinion, the U.S. Supreme Courtremanded the long-running, multi-million dollar, federal Rogers case, involving the rightto refuse treatment of civilly committed hospitalized patients, which had gone up to it onappeal, to be decided in light of Roe. The Supreme Court did so on the grounds that thejudges in Roe had carved out a right to refuse treatment on the basis of state law thatwent beyond anything it could find on the basis of U.S. constitutional law.

And so, what started out as a minor case – couldRichard 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 anon-consenting hospitalized mental patient can be treated, with the decision to be made onthe basis of “substituted judgment.”


In the Matter of Guardianship of Richard Roe III was aprofoundly anti-family decision. It never seemed to occur to the Court that Richard Roe’sfamily, despite his serious illness, wanted to take care of him and that making itfeasible for them to do so should be society’s concern. According to the Court, RichardRoe’s father lacked the “detachment” to decide whether his son should bemedicated. But it was precisely because he cared what happened to his son and wanted himrestore 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 hadled Richard to attack them in the past and could make living with him impossible. Thejudges refused to consider that other children in the family had a legitimate interest inliving without fear of violence from a severely ill, uncontrollable family member. Suchinterests were viewed as “selfish.”

While the judges felt they were upholding the interests ofthe ill individual at the expense of all others, in fact their decision made the illindividual 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, isforced 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 haveapplied 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. Theparents divorced, and Richard became a semi-street person constantly involved with the lawfor petty infractions.

In their opinion, the judges also displayed astonishingignorance concerning psychiatric medications, which do not “undermine the foundationsof personality” as they claimed, but reduce hallucinations, disordered thoughtprocesses, agitation, withdrawal and other psychotic symptoms that can much better bedescribed as undermining personality. Anti-psychotic drugs — particularly the older ones,then the only ones available — do indeed have side effects, but the judges almost totallyignored the positive effects of medications, while reciting every possible adverse effect.

The notion of “substituted judgment” (originallydeveloped by the Massachusetts court to guide decision-making in the case of severelymentally retarded individuals) is wrong-headed in the case of people with NBD. The goalshould be restoring the ill person to competency, something medication will do in mostcases, and based on his earlier response to anti-psychotic drugs, clearly would haveaccomplished 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, buttaking into account the present and future incompetency of the individual as one of thefactors which would necessarily enter into the decision-making process of the competentperson”) amounts to, as psychiatrists Paul Appelbaum and Thomas Gutheil have pointedout, is simply “the substitution of the preferences of the decision-maker for thoseof the incompetent person.” In the Roe case, it was the judgment of the state’shighest court whose members were woefully ignorant of the nature of psychiatric drugs andhad obtained their false notions from law journal articles (which they liberally cite)transmitting the Szaszian notions of the mental health bar to the bench.