A TTORNEY FOR A PPELLANT Michael J. Jenuwine Robert L. Jones, Jr. Notre Dame Legal Aid Clinic South Bend, Indiana

______________________________________________________________________________ 

# In the 

# Indiana Supreme Court

_________________________________ J.S., Appellant (Petitioner),

v.

C ENTER F OR B EHAVIORAL H EALTH , Appellee (Respondent)

.

_________________________________ Appeal from the Monroe Circuit Court, No. 53C07-0401-MH-00007 The Honorable David L. Welch, Judge

_________________________________ Dissent from Denial of Petition to Transfer from the Indiana Court of Appeals, No. 53A04-0509-CV-563

_________________________________ January 9, 2007

Rucker, Justice, dissenting from denial of transfer.

Addressing the circumstances under which a mental health patient can be forced to take anti-psychotic drugs against the patient’s will, this Court announced among other things that the “indefinite administration of these medications is not permissible.” In re the Mental

Commitment of M.P. , 510 N.E.2d 645, 648 (Ind. 1987). In this case the Appellant seeks transfer contending that the trial court’s order requiring Appellant to take medication over her objection is in direct conflict with the foregoing precedent. I agree and therefore would grant transfer.Forty-eight-year-old J.S. has a chronic psyc hotic disorder with symptoms typical of paranoid schizophrenia. She also has a persistent , uncontrolled epileptic disorder. Since the age of sixteen, J.S. has been hospitalized at leas t five times for mental illness and has undergone surgery to remove a significant portion of her left temporal lobe in an effort to control her epileptic seizures. Despite her illnesses J.S. ear ned a Bachelor’s Degree in general studies in 1991 and a Master’s Degree in Public Health in 1999, both from Indiana University. Although J.S. has sometimes lived in an independent setting, her mother serves as her guardian.

J.S. has been under the care of Dr. Jerry Neff at the Center for Behavioral Health (Center) located in Bloomington. He has prescribed Ri sperdal to her, a medication used to treat schizophrenia. From time to time J.S. has refu sed to take her medication and at one time had stopped eating because she believed that people we re poisoning her food. This lack of nutrition resulted in significant weight loss.

In late 2003 and early 2004, J.S. again refuse d to eat because she thought that her food was being poisoned, and her Center case manager found bottles of Risperdal in J.S.’s home that revealed J.S. had not been taking her medication. Around this same time J.S. became verbally aggressive with her case manager. Consequentl y, the Center filed a petition for J.S.’s emergency detention and, soon thereafter, a regular involuntar y commitment. After a hearing the trial court entered an order (Commitment Order) that include d findings that J.S. wa s suffering from severe seizure disorder/chronic paranoid schizophrenia, that she was dangerous and gravely disabled,

and that she was in need of commitment to an appropriate facility for a period expected to exceed ninety days. App. at 11. The Commitm ent Order also directed the hospital to “administer medication to the patient with or w ithout the patient’s consent” (referred to as the Forced Medication Order). Id. The trial court also found that J.S.’s condition would deteriorate if J.S did not receive medication regularly.

Pursuant to the Forced Medication Order, in January 2004 J.S. began receiving an injectable form of Risperdal, Risperdal Consta. She was eventually released from the hospital but required to return to the Center to meet with her case manager weekly and to receive injections every two weeks. Although the medica tion improves J.S.’s mental health, J.S. does

2not believe that she is mentally ill, does not want her medication, and complains that the Risperdal Consta injections exacerbate her seizur e disorder. Because of these beliefs, she failed to obtain regular injections as required by the court’s order.

In December 2004 the Center filed a periodic report and a treatment plan summary that cited J.S.’s lack of insight into her mental illn ess and J.S.’s reluctance to take her medication. The Center also requested that the Commitment Or der “currently in effect for this patient be continued without a hearing.” A pp. at 13. At J.S.’s request the trial court scheduled a hearing, which was conducted in August 2005. At the conclusi on of the hearing the trial court entered an order which found that J.S. was mentally ill, da ngerous, and gravely disabled. The trial court also continued J.S.’s involuntary regular commitm ent and determined that inpatient treatment

and continuation of the Forced Medication Order were necessary. J.S. appealed challenging the sufficiency of the evidence to support the trial court’s Commitment Order and the adequacy of

the Forced Medication Order. 1 The Court of Appeals affirmed the judgment of the trial court.

J.S. v. Ctr. for Behavioral Health , 846 N.E.2d 1106 (Ind. Ct. App. 2006) . J.S. seeks transfer challenging only the propriety of the Forced Medica tion Order. This Court has entered an order denying transfer.

Described as “the most controversial and di visive issue between the medical and legal professions,” Dennis E. Cichon, The Right to “Just Say No”: A History and Analysis of the Right to Refuse Antipsychotic Drugs , 53 La. L. Rev. 283, 286 (1992), the question of whether and under what circumstances institutionalized mentally disabled patients may refuse prescribed psychiatric treatment has been a source of much debate. 2 This Court has recognized that a

1 More specifically J.S. contended: (1) the Center fa iled to establish by clear and convincing evidence that J.S. was a danger to herself or others; (2) the Cent er failed to establish by clear and convincing evidence that J.S was gravely disabled; (3) the trial court fa iled to address this Court’s command to curtail the time period within which an anti-psychotic drug may be admi nistered; (4) the trial court failed to require the Center to demonstrate by clear and convincing evid ence that it had evaluated and specifically rejected each and every alternative form of treatment and that there exists no less restrictive alternative treatment; and (5) the trial court’s forced medication order w as not supported by clear and convincing evidence that the probable benefits from the forced injections of Ri sperdal outweigh both the risks of harm to J.S. and her personal concerns about the medica tion. Appellant’s Br. at i, ii.

2 The assumption that mentally ill patients have a right to refuse treatment is due, in part, to the Supreme Court’s ruling in Youngberg v. Romeo

, 457 U.S. 307 (1982), which held that freedom from bodily

3“patient has a liberty interest in remaining free of unwarranted intrusions into his physical person

and his mind while within an institution” and that “[i]t cannot be seriously disputed that forced medication of a mental patient interfer es with that liberty interest.” In re M.P. , 510 N.E.2d at 646. This Court has also acknowledged that the St ate has a statutory as well as a constitutional duty to provide treatment for the mentally ill. Id. (citing Ind. Code § 16-14-1.6-2 (amended and recodified at I.C. § 12-27-2-1 and I.C. § 12-27-2-2); Ind. Const. Art. IX, § 1; Youngberg , 457 U.S. 307). Striking the balance between the patient’s liberty interest and the State’s parens patriae power to act in the patient’s best interest, this Court not only outlined what the State is required to prove in order to override a patient’s right to refuse treatment, but also enunciated three limiting elements for the trial court’s consider ation, which this Court described as “basic to

court sanctionable forced medications.” In re M.P. , 510 N.E.2d at 647.

First, the court must determine that there has been an evaluation of each and every other form of tr eatment and that each and every alternative form of treatment has been specifically rejected. It must be plain that there exists no less restrictive alternative treatment and that the treatment selected is reasonable and is the one which restricts the patient’s lib erty the least degree possible. Inherent in this standard is the possibility that, due to the patient’s objection, there may be no reasonable treatment available. This possibility is acceptable. The duty to provide treatment does not extend beyond reasonable methods.

restraint has long been recognized as the “core” of the liberty interest protected by the Due Process Clause of the United States Constitution. However, Youngberg further declared that treatment decisions by professionals for individuals in an instituti on are presumptively valid and will not violate an individual’s rights unless they constitute “a substa ntial departure from accepted professional judgment, practice, or standards.” Id. at 323. Since then, federal courts have applied the Youngberg professional judgment standard to the forced administration of anti-psychotic and psychotropic drugs to civilly committed patients. See, e.g.

, United States v. Charters , 863 F.2d 302, 312-13 (4th Cir. 1988); Johnson v. Silvers , 742 F.2d 823, 825 (4th Cir. 1984); Rennie v. Klein , 720 F.2d 266, 269 (3d Cir. 1983) (plurality opinion). Because the federal standard has posed a substantial bar to relief many patients have sought refuge in state courts that have more broadly defined the right to refuse drug treatments based on state law. See, e.g.

, Riese v. St. Mary’s Hosp. & Med. Ctr. , 243 Cal. Rptr. 241, 246-50 (1987) (state statute); People v. Medina , 705 P.2d 961, 967 (Colo. 1985) (state statute and case law); In re Orr , 531 N.E.2d 64, 71-72 (Ill. App. Ct. 1988), superceded by statute (state statute); In re M.P. , 510 N.E.2d at 646 (state statute); In re Guardianship of Linda , 519 N.E.2d 1296, 1299 (Mass. 1988) (case law); Jarvis v. Levine

, 418 N.W.2d 139, 148 (Minn. 1988) (state constitution); Rivers v. Katz , 495 N.E.2d 337, 341-42 (N.Y. 1986) (case law and state constitution); In re the Mental Health of K.K.B. , 609 P.2d 747, 749-51 (Okla. 1980) (case law); State ex rel. Jones v. Gerhardstein , 416 N.W.2d 883, 892 (Wis. 1987) (state and federal constitution).

4Second, the court must look to th e cause of the commitment. Some handicapped persons cannot have their capacities increased by anti-psychotic medication. The drug therapy must be within the reasonable contemplation of the committing decree.

And thirdly, the indefinite admini stration of these medications is not permissible. Many of these drugs have little or no curative value and their dangerousness increases with the period of ingestion. The court must curtail the time period within which they may be administered. If a patient does not substantially benefit from the medication, it should no longer be administered.

Id. at 647-48. This third limiting element is at issue here.

The Commitment Order that was first issu ed on January 28, 2004 provided in relevant part, “the Respondent is accordingly committed to the Bloomington Hospital Med Psych Unit, Bloomington, Indiana for a period to exceed nine ty (90) days. The Bloomington Hospital Med Psych Unit, Bloomington, Indiana shall administer medication to the patient with or without the patient’s consent.” App. at 11. Absent in the orde r is any indication that the trial court curtailed the time period within which J.S.’s medication may be administered. The trial court’s order of August 31, 2005 is similarly deficient. Id. at 10. In pertinent part the order simply says, “It Is Therefore Ordered that the Request to C ontinue the Regular Commitment and Forced Medication Order be and is hereby Granted.” Id. The failure to include a time period limitation leaves open the very real possibility that administ ration of J.S.’s medications may be “indefinite” which we have declared as “not permissible.” In re M.P. , 510 N.E.2d at 648.

The Court of Appeals in this case acknowledge d that the trial court’s order “did not specify a time period for the forced ad ministration of the medications.” J.S. , 846 N.E.2d at 1115. According to the court “the statutory review re quirement exists regardless of whether the trial

court’s order mentions it.” Id. The court reasoned that the periodic review for commitment orders provided by Indiana Code section 12-26-15-1(a) 3 rendered the Forced Medication Order here not indefinite. I have a much different view than that of my colleagues.

3 Indiana Code Section 12-26-15-1(a) reads in full: At least annually, and more often if directed by the court, the superintendent of the facility or the attending physician including the superintendent or attending physician of

5First, although the statute provides for periodi c review – “[a]t least annually, and more often if directed by the court” – the statute is simply silent on the ques tion of the length of time forced medication may be administered. Indeed even if a periodic report is filed on a monthly basis, there still is nothing to prohibit a monthly re quest for forced medication that continues into the indefinite future. This is no mere hyperbol e. The treatment plan the Center submitted in December 2004, which precipitated the August 2005 hearing, indicated that its expected duration was “indefinite.” App. at 17. For a period of approximately four months between October 1, 2004 and January 28, 2005, J.S. had not taken her in jections of Risperdal Constra. Dr. Neff

testified that he did not observe a deterioration in J.S.’s condition during this brief period of time that she was off her medication. Tr. at 106, 109, 114. Despite this evidence, Dr. Neff opined

that in the absence of a commitment or conti nuation of the forced medication order J.S. “will inevitably discontinue treatment and decompensate resulting in her grave disability.” Tr. at 77. He believes a relapse not occurring in the peri od of 119 days “is perhaps encouraging, but it’s certainly not a guarantee anymore than if you play Russian roulette and the first five times you snap the trigger, you don’t die, means that your [sic] safe to do it forever.” Tr. at 81. 4

an outpatient therapy program, shall file with the court a review of the individual’s care and treatment. The review must contain a statement of the following: (1) The mental condition of the individual. (2) Whether the individual is dangerous or gravely disabled. (3) Whether the individual: (A) needs to remain in the facility; or (B) may be cared for under a guardianship.

4 In fact it appears that clinical thought is domin ated by the assumption that patients must remain on medications all their lives to maintain lifelong stab ilization. George Gardos & Jonathan O. Cole, Maintenance Antipsychotic Therapy: Is the Cure Worse than the Disease? , 133 Am. J. Psychiatry 32, 32 (1976) (“Most experts believe that drug therapy s hould be continued indefinitely in view of the substantial risk of relapse upon discontinuance. . . .”). And although the potential for relapse is evident, studies also indicate an equally possible outcome – no relapse. See Peter J. Weiden & Mark Olfson, Nat’l Inst. of Mental Health, Cost of Relapse in Schizophrenia , 21(3) Schizophrenia Bull. 419, 419 (1995)(finding after a review of all available comparative studies of schizophrenic patients treated with antipsychotic drugs that the monthly rate of relapse fo r patients who have disconti nued their medications is 11% per month, as compared with 3.5% per month for patients on maintenance therapy); Courtenay M. Harding & James H. Zahniser, Empirical Correction of Seven Myths About Schizophrenia with Implications for Treatment , 90 Acta Psychiatrica Scandinavica 140, 143 (1994) (having analyzed the results of long-term studies, noted a “surprising number” (at least 25-50%) of patients who were completely off their medications suffered no furthe r signs or symptoms of schizophrenia and were functioning well).

6Second, and perhaps more importantly, In re M.P. acknowledged the requirement of annual judicial review. After outlining the three limiting elements a trial court must consider in order to override a patient’s right to refuse treat ment, this Court remanded the cause to the trial court declaring, “If the redetermination is in favor of the State and permits M.P. to be medicated against his will, the treatment so sanctioned sha ll be ordered subject to automatic reevaluation by the court within one year. (I.C. 16-14-9.1-10).” In re M.P. , 510 N.E.2d at 648. With only minor editing this statute was recodified in 1992 as Indi ana Code section 12-26-15-1(a). It is clear to me that this Court envisioned the statutorily mandated annual review and the limiting elements working in conjunction to ensure that forced medication is not carried on any longer than absolutely necessary.

In sum, Indiana Code section 12-26-15-1(a), like its predecessor Indiana Code section 16- 14-9.1-10, does not provide protection against the indefinite administration of anti-psychotic drugs against a patient’s will. That can only be accomplished by careful trial court oversight and the entry of an appropriate order imposing a precise time limit. See, e.g.

, In re the Commitment

of J.B. , 766 N.E.2d 795, 801 (Ind. Ct. App. 2002) (concl uding that the trial court’s forced medication order was erroneous, in part because it failed to impose a definite time limit on the medications that were to be administered). I w ould therefore grant transfer in this case, reverse the Forced Medication Order, and remand to the trial court to enter an order that curtails the time period within which J.S.’s forced medication can be administered.

Sullivan, J., concurs.

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