WILLIAM EMMETT DWYER, ESQ. 

Disability Rights New Jersey, Inc.

210 South Broad Street, Third Floor 

Trenton, NJ 08608 

Tel: (609) 292-9742 

Fax: (609) 777-0187 

ROBERT COHEN, ESQ. (pro hac vice pending) 

SHIVA FAROUKI, ESQ. (pro hac vice pending) 

MICHAEL DAVID REISMAN, ESQ. (pro hac vice pending) 

ALEXANDRA P. KOLOD, ESQ. (pro hac vice pending) 

Kirkland & Ellis LLP 

601 Lexington Avenue 

New York, NY 10022 

Tel: (212) 446-4800 

Fax: (212) 446-6460 

Attorneys for Plaintiff Disability Rights New Jersey, Inc. 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW JERSEY 

DISABILITY RIGHTS NEW JERSEY, INC., 

a New Jersey non-profit corporation, 

Plaintiff, 

- against - 

JENNIFER VELEZ, in her official capacity as 

Commissioner, State of New Jersey Department 

of Human Services, and 

POONAM ALAIGH, in her official capacity as 

Commissioner, State of New Jersey Department 

of Health and Senior Services, 

Defendants. 

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Civil Action No. 

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COMPLAINT 

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Plaintiff Disability Rights New Jersey, Inc. (“DRNJ”) brings this suit against the 

Defendants on behalf of its constituents who presently are or will be detained at or admitted to 

psychiatric hospitals in New Jersey and to whom psychotropic medication is being or will be 

administered involuntarily on a non-emergency basis. All constituents are individuals with 

disabilities, have a record of disabilities, or are perceived to have such disabilities, for purposes 

of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973. 

PRELIMINARY STATEMENT

1. In New Jersey today, people in psychiatric hospitals can be drugged with massive 

doses of mind-altering medication, sometimes administered by painful intramuscular injection, 

without any meaningful medical oversight and without adequate due process of law. 

2. Undeniably, each person has a fundamental right to refuse the forced 

administration of psychotropic drugs and to be informed of and participate in decisions regarding 

her health care. Psychotropic drugs can provide symptom relief but they can also have powerful 

negative effects on a person’s ability to think and feel, and on her sense of self. They can also 

cause unpredictable, disabling, and sometimes incurable disorders, including memory loss, 

akathisia (repetitive, irresistible tapping-type movements), and neuroleptic malignant syndrome, 

a condition that can be fatal. One in four patients receiving long-term treatment with 

antipsychotic drugs contracts tardive dyskinesia, a disease characterized by involuntary writhing 

movements of the facial muscles, tongue, trunk, and limbs. 

3. The only procedural protection a patient in a New Jersey State psychiatric hospital 

has against these dangers is a decades-old peer review procedure known as the “Three-Step 

Process.” The three informal steps require merely (a) a psychiatrist’s decision to medicate a 

patient involuntarily; (b) the treatment team’s approval of the decision; and (c) the hospital 

medical director’s approval of the decision. In both theory and practice, however, the ThreeCase 3:10-cv-03950-MLC -DEA Document 1 Filed 08/03/10 Page 2 of 80 PageID: 2
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Step Process is a rubber stamp for a psychiatrist’s decision to forcibly medicate a 

patient. Indeed, under the Three-Step Process, psychiatric patients in New Jersey who do not 

want to be forcibly medicated lack any right to legal representation or even a hearing before a 

decision-maker who is independent of the hospital. Additionally, these patients have no 

meaningful right or ability to appeal a forcible medication decision. Remarkably, the Three-Step 

Process does not even provide these patients with an advocate who is charged with advancing 

their expressed preferences regarding medication. 

4. Thus, under the Three-Step Process used in New Jersey State hospitals today, a 

psychiatrist can order the forcible injection of a patient whom the psychiatrist knows to be 

competent to make medical decisions, merely because the patient disagrees with the psychiatrist 

over the need for medication. Worse, New Jersey psychiatric hospitals may forcibly medicate 

patients who are healthy enough to leave the hospital but are simply waiting for housing in the 

community. 

5. As inadequate as the Three-Step Process may be, it does not appear to be used at 

all in New Jersey’s county and private psychiatric hospitals. Thus, patients in those institutions 

lack even the illusory promise of the due process protections supposedly offered to patients in 

State institutions. 

6. An investigation by the United States Department of Justice recently concluded 

that medication practices in New Jersey’s largest State psychiatric hospital substantially deviate 

from generally accepted professional standards. Such dangerous practices, including 

polypharmacy (the administration of massive doses of multiple powerful psychotropic 

medications to the same patient), have put the health and lives of psychiatric patients at risk. 

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7. Thirty years ago, a Court in this District attempted to forge a solution to the 

problem of involuntary medication that would protect patients’ rights and safety. But since then, 

New Jersey has moved backwards, and now affords fewer rights to psychiatric patients than it 

did three decades ago. Yet, over the same period, the federal government and most other states 

have greatly expanded patients’ rights. Indeed, more than two-thirds of Americans live in states 

that provide hearings to people in psychiatric hospitals who refuse psychotropic medication. 

8. Shockingly, New Jersey treats prison inmates far better than it does patients in 

psychiatric hospitals. Prison inmates in New Jersey are given the right to challenge the 

unwanted administration of psychotropic medication in a hearing before an independent and 

impartial decision-maker, with the prison bearing the burden to prove that such medication is 

necessary. These fundamental protections, which provide basic guarantees of due process, are 

completely absent for each and every individual in New Jersey psychiatric hospitals. 

9. The harrowing experiences of constituent representatives — who are not parties 

to the case but have sought legal assistance from Plaintiff DRNJ — provide but a few examples 

of the appalling treatment of psychiatric patients in New Jersey.1 For example, constituent P.D., 

who was trained as a scientific glassblower and is a patient at Ancora Psychiatric Hospital, has 

been given many different psychotropic drugs that have caused him to experience painful side 

effects. The medications caused P.D. to experience such severe akathisia (restlessness) that the 

skin on his legs was worn from his constantly pacing the halls of the hospital ward. P.D. 

experienced forced injections of Haldol to be like torture. Further, the medications have 

 

1 The constituent representatives are referred to by their initials to maintain their privacy and the confidentiality 

of their records and files in this proceeding. The Defendants will be provided with the actual identities of the 

constituent representatives upon entry of a protective order and execution of a confidentiality agreement. 

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prevented P.D. from doing the things he enjoys doing on a daily basis, such as reading, sketching 

and writing. Moreover, hospital staff never explained to P.D. that he has a right to refuse 

medication. 

10. Similarly, constituent A.H., a woman who has worked in a number of jobs 

including as a pharmacy technician, was recently hospitalized at Trenton Psychiatric Hospital. 

Although she raised serious concerns with hospital staff about the debilitating side effects of the 

psychotropic medication prescribed for her, she reluctantly agreed to take the medication orally 

only after being threatened by staff with forced injections. A.H. also received forced injections 

of medication at private psychiatric hospitals in New Jersey, but was never advised by any New 

Jersey hospitals of her right to refuse medication. 

11. This case seeks to compel Defendants to respect the human dignity and basic 

rights of individuals in New Jersey’s psychiatric hospitals. Accordingly, Plaintiff, on behalf of 

its constituents, seeks declaratory and injunctive relief requiring Defendants to provide patients 

who refuse the non-emergency administration of psychotropic medication with meaningful due 

process protections — including legal counsel, notice and a hearing before a judicial decisionmaker — before such persons may be involuntarily medicated. The hospital should have the 

burden to show that medication is likely to be effective and that side effects and less intrusive 

alternative treatments have been considered. 

THE PARTIES 

Plaintiff

12. Plaintiff Disability Rights New Jersey, Inc. (“DRNJ” or “Plaintiff”), a non-profit 

corporation, is the federally funded agency designated since 1994 to serve as New Jersey’s 

protection and advocacy system for people with disabilities. Pursuant to this designation, DRNJ 

serves as the agency to implement, on behalf of the State of New Jersey, the Protection and 

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Advocacy System for Individuals with Mental Illness established under 42 U.S.C. §§ 10801-

10807 (1991). 

13. DRNJ is part of a nationwide network of protection and advocacy agencies 

located in all fifty states, the District of Columbia, Puerto Rico, and the federal territories. The 

protection and advocacy system comprises the nation’s largest provider of legally based 

advocacy services for people with disabilities. 

14. DRNJ has statutory authority to pursue legal, administrative and other appropriate 

remedies to ensure the protection of individuals with mental illness who are or will be receiving 

care and treatment in New Jersey pursuant to the Protection and Advocacy for Individuals with 

Mental Illness Act, 42 U.S.C. § 10801 et seq. 

15. Persons with mental illness are the functional equivalent of members of DRNJ for 

purposes of associational standing. These persons are the direct and primary beneficiaries of 

DRNJ’s activities, which include the prosecution of this litigation. 

16. DRNJ’s constituents are involved in all levels of the organization. Pursuant to 

federal law, the chairperson and at least 60% of the membership of DRNJ’s Advisory Council, 

which guides DRNJ’s policies and procedures, is “comprised of individuals who have received 

or are receiving mental health services or family members of such individuals.” 42 U.S.C. § 

10805(a)(6)(B). 

17. DRNJ is pursuing this action to protect and advocate for the rights and interests of 

“individuals with mental illness” as that term is defined in 42 U.S.C. § 10802. Specifically, 

DRNJ brings this action on behalf of individuals with mental illness who are or will be confined 

in psychiatric hospitals within New Jersey and who are or will be prescribed psychotropic 

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medication. Psychotropic medications are drugs that have a direct effect on the central nervous 

system and can modify emotion, cognition and behavior. 

18. Plaintiff’s constituents have each suffered injuries, or will suffer such injuries, 

that would allow them to bring suit against Defendants in their own right. 

Defendants

19. Defendant Jennifer Velez is Commissioner of the Department of Human Services 

of New Jersey, a public entity covered by, inter alia, Title II of the Americans with Disabilities 

Act (“ADA”). 42 U.S.C. § 12131(1) (1990). 

20. Defendant Velez is ultimately responsible for ensuring that New Jersey operates 

its service systems in conformity with the constitutions of the United States and New Jersey and 

with the ADA and Section 504 of the Rehabilitation Act (“Section 504”). 29 U.S.C. § 794(a) 

(2002). She is sued in her official capacity. 

21. The Department of Human Services operates state inpatient psychiatric facilities 

and is responsible for discharge planning, placement, and follow up for individuals residing in 

such facilities. 

22. The Department of Human Services also operates developmental centers for 

individuals with developmental disabilities. 

23. The Department of Human Services is a recipient of federal funds and administers 

state mental health programs. 

24. Defendant Poonam Alaigh is Commissioner of the Department of Health and 

Senior Services of New Jersey (“DHSS”), a public entity covered by, inter alia, Title II of the 

Americans with Disabilities Act (“ADA”). 42 U.S.C. § 12131(1). 

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25. Defendant Alaigh is ultimately responsible for ensuring that all hospitals in New 

Jersey are operated in conformity with the constitutions of the United States and New Jersey and 

with the ADA and Section 504. She is sued in her official capacity. 

26. DHSS regulates a wide range of health care settings for quality of care, such as 

hospitals, nursing homes, assisted living residences, ambulatory care centers, home health care, 

medical day care and others. 

27. DHSS also licenses hospitals, including psychiatric hospitals that provide 

comprehensive specialized diagnosis, care, treatment and rehabilitation on an in-patient basis for 

patients with primary psychiatric diagnoses. 

28. DHSS is a recipient of federal funds. 

JURISDICTION 

29. This action is brought pursuant to the Constitution of the United States and 42 

U.S.C. § 1983. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 (1980) 

(for civil actions arising under the laws of the United States) and 28 U.S.C. § 1343(a)(3)&(4) 

(1979) (for actions under laws providing for the protection of civil rights). 

30. Plaintiff seeks declaratory and injunctive relief under 28 U.S.C. § 2201 et seq. 

(1993). 

VENUE

31. Venue is proper in the United States District Court for the District of New Jersey 

pursuant to 28 U.S.C. § 1391(a) (2002) because it is the district in which the Plaintiff’s claims 

arose and all of the parties reside in this district. Trenton is the proper vicinage because it is 

where the Defendants have their principal offices and where State policy is made. 

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FACTS 

I. Psychiatric Institutions in New Jersey 

32. Approximately three thousand individuals are hospitalized in public and private 

psychiatric facilities in New Jersey. The majority of these individuals are committed on 

involuntary status. 

33. Defendant Department of Human Services operates five inpatient psychiatric 

hospitals in New Jersey, the so-called “State hospitals”: (a) Ancora Psychiatric Hospital 

(“Ancora”) in Winslow Township, which serves a general adult population, elderly and forensic 

patients, and people who have been dually diagnosed to have both a developmental disability and 

a mental illness; (b) Greystone Park Psychiatric Hospital (“Greystone”) in Morris Plains, which 

serves adults; (c) Hagedorn Psychiatric Hospital (“Hagedorn”) in Glen Gardner, which serves 

general and elderly populations; (d) Trenton Psychiatric Hospital (“Trenton Psychiatric”) in 

Trenton, which serves adults; and (e) Ann Klein Forensic Center in Trenton, which serves people 

who have been determined by the courts to be not guilty by reason of insanity or incompetent to 

stand trial, or who require special security measures due to the nature of their illness. These 

institutions had a combined average daily census of approximately 1,800 patients in May 2010. 

34. Defendant Department of Human Services also funds most of the cost of indigent 

inpatient care at six “County” psychiatric units and hospitals, including: (a) Bergen Regional 

Medical Center in Paramus; (b) Buttonwood Hospital in Pemberton Township; (c) Camden 

County Health Services Center in Blackwood; (d) Essex County Hospital Center in Cedar Grove; 

(e) Meadowview Hospital in Secaucus; and (f) Runnells Hospital in Berkeley Heights. Together, 

these hospitals have approximately 750 patient beds. 

35. Defendant DHSS licenses all hospitals in New Jersey, including the above-listed 

State and County psychiatric hospitals as well as other facilities such as the following: (a) 

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Ramapo Ridge Psychiatric Hospital in Wyckoff, which has 58 psychiatric beds; (b) Hampton 

Behavioral Health Center in Westhampton, which has 100 psychiatric beds; (c) Saint Barnabas 

Behavioral Health Center in Toms River, which has 40 psychiatric beds; (d) East Mountain 

Hospital in Belle Mead, which has 16 psychiatric beds; (e) the Carrier Clinic in Belle Mead, 

which has 281 psychiatric beds; and (f) Monmouth Medical Center in Long Branch, which has 

63 psychiatric beds. 

II. Side Effects of Psychotropic Medications 

36. At the outset, it is important to understand that many patients rationally refuse 

psychotropic medication because of the dangerous side effects of such drugs. There can be no 

dispute that psychotropic medications can be useful in controlling the symptoms of some forms 

of mental illness, in particular schizophrenia. But there can also be no dispute that these 

medications frequently cause severe side effects, some of which can be irreversible. Further, 

sometimes these medications fail to help patients. 

37. According to the National Institute of Neurological Disorders and Strokes of the 

National Institutes of Health, antipsychotic drugs can cause neuroleptic malignant syndrome, a 

life-threatening neurological disorder.2 Additionally, the National Institutes for Mental Health 

(“NIMH”) has found that long-term use of antipsychotic medications can cause tardive 

dyskinesia, a potentially incurable and disfiguring condition that causes muscle movements a 

person cannot control. For long-term psychiatric patients like Plaintiff’s constituents, the chance 

of contracting tardive dyskinesia from psychotropic drugs is approximately one in four. Gary 

Tollefson, et al., Blind, Controlled, Long-Term Study of the Comparative Incidence of 

 

2 See http://www.ninds.nih.gov/disorders/neuroleptic_syndrome/neuroleptic_syndrome.htm. 

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Treatment-Emergent Tardive Dyskinesia With Olanzapine or Haloperidol, 154 AM. J.

PSYCHIATRY 1248 (September 1997). Moreover, a 2004 study found that, despite its high 

prevalence, psychiatrists documented the symptoms of tardive dyskinesia in only 5.5% of cases. 

Leonardo Cortese, et al., Assessing and Monitoring Antipsychotic-Induced Movement Disorders 

in Hospitalized Patients: A Cautionary Study, 49 CAN. J. PSYCHIATRY, 31, 34 (January 2004). 

38. Other side effects of psychotropic medications include increased risk of diabetes 

and high cholesterol, problems with physical movement such as rigidity, persistent muscle 

spasms, tremors and restlessness, drowsiness, dizziness, blurred vision, rapid heartbeat, 

sensitivity to the sun, skin rashes, menstrual problems for women, major weight gain, and 

changes in a person’s metabolism.3 

39. One of the most common side effects of antipsychotic drugs is a condition known 

as akathisia, which is marked by uncontrollable physical restlessness and agitation and by 

interminable pacing, shaking of arms and legs, foot bouncing, and anxiety or panic. Ironically, 

this side effect mimics symptoms of mental illness itself. When even more antipsychotic 

medication is administered due to a psychiatrist’s erroneous perception that the signs of akathisia 

are symptoms of disease, the patient’s agitation and panic increase. An opposite type of side 

effect is akinesia, which is typified by drowsiness and the need to sleep a great deal.

40. An article published in the Psychiatric Times in 2007 noted that polypharmacy, 

the prescribing for a single person of more than one drug of the same chemical class (such as 

antipsychotics), is widely practiced despite little empirical support, and can result in serious 

adverse reactions and intensified side effects. Further, using multiple antipsychotics at the same 

 

3 See http://www.nimh.nih.gov/health/publications/mental-health-medications/complete-index.shtml. 

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time has been associated with increased death rates in patients with schizophrenia. Steven 

Kingsbury & Megan Lotito, Psychiatric Polypharmacy: The Good, the Bad, and the Ugly, 24 

PSYCHIATRIC TIMES 32 (April 1, 2007).4 Despite these dangers, many patients in New Jersey 

psychiatric hospitals — including the constituent representatives, whose stories are presented 

above (see Preliminary Statement) and in Section V below — are prescribed more than one 

antipsychotic drug at the same time. 

41. Indeed, Defendant Department of Human Services’ own psychopharmacology 

guidelines, issued to and used by psychiatrists in State psychiatric hospitals, acknowledge that 

“use of [antipsychotic drugs] in combinations can lead to additive side effects, drug/drug 

interactions, difficulties when adjusting dosages, and adherence problems, in addition to 

increased costs.” New Jersey Division of Mental Health Services Psychopharmacological 

Practice Guidelines for the Treatment of Schizophrenia (2005), at 3.5

42. The “first generation” of antipsychotic drugs, developed in the 1950s, provided 

symptom relief for many people with schizophrenia, but also failed to help many others and 

caused the above-mentioned side effects, which in some cases were worse than the disorders the 

medications were intended to treat. Nevertheless, first-generation antipsychotics, such as 

Thorazine and Haldol, are still widely used today. Since the 1980s, however, a “second 

generation” of antipsychotics — the so-called “atypicals” — has been optimistically touted as 

better controlling the symptoms of schizophrenia while causing fewer side effects. Commonly 

prescribed second-generation antipsychotics include Seroquel, Risperdal, and Clozaril. 

 

4 Available at http://www.psychiatrictimes.com/display/article/10168/53816. 

5 Available at http://www.state.nj.us/humanservices/dmhs/consumer/NJDMHS_Pharmacological_Practice_Guidelines762005.pdf.

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43. Although second-generation antipsychotics provide symptom relief to many 

people with schizophrenia, a landmark study, known as Clinical Antipsychotic Trials of 

Intervention Effectiveness (“CATIE”), sponsored by NIMH and published in the New England 

Journal of Medicine in 2005, concluded that the second generation of antipsychotic drugs is no 

more effective than the first generation, and on the whole, causes as many side effects. Jeffrey 

Lieberman et al., Effectiveness of Antipsychotic Drugs in Patients with Chronic Schizophrenia, 

353 NEW ENG. J. MED. 1209 (Sept. 22, 2005). The CATIE study thus debunked the myth that 

the second-generation drugs represent a “miracle” cure without side effects. 

44. The CATIE study was comprehensive and wide-ranging: It involved more than 

1,400 participants at 57 sites around the country over an 18-month period. Overall, the “old” and 

“new” antipsychotic medications were comparably effective but all were associated with high 

rates of discontinuation due to intolerable side effects — such as abnormal weight gain — or 

failure to adequately control symptoms. The CATIE study also found that movement side 

effects (rigidity, stiff movements, tremors, and muscle restlessness) associated with the older 

medications were seen just as frequently with the newer drugs as with the older ones. 

45. The results of the CATIE study were independently confirmed by the Cost Utility 

of the Latest Antipsychotic Drugs in Schizophrenia Study (“CUtLASS”), which was sponsored 

by the English National Health Service and published in the journal Archives of General 

Psychiatry in October 2006. Peter Jones, et al., Randomized Controlled Trial of the Effect on 

Quality of Life of Second- vs First-Generation Antipsychotic Drugs in Schizophrenia: Cost 

Utility of the Latest Antipsychotic Drugs in Schizophrenia Study (CUtLASS 1), 63 ARCH. GEN.

PSYCHIATRY 1079 (Oct. 2006). The CUtLASS study concluded that treatment outcomes, 

including quality of life as well as symptom-based measures, were no better for patients taking 

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second-generation antipsychotic drugs compared to those taking first-generation antipsychotics, 

and there was no difference in incidence of side effects. In fact, there was a trend favoring 

slightly better outcomes for those taking first-generation antipsychotics over second-generation 

antipsychotics. 

46. The chief investigators of the CATIE and CUtLASS studies stated in the British 

Journal of Psychiatry in 2008 that 

the convergence in the results of these two trials is compelling. . . . It is worth 

reflecting on how crudely we often use antipsychotic drugs. Polypharmacy, the 

prescribing of two or more antipsychotics in parallel, is widespread despite the 

lack of evidence to support it and the knowledge that it doubles costs 

and multiplies safety risks. Off-label prescribing is common. It is perhaps not 

surprising that, in the context of a severe, chronic illness, clinicians are tempted to 

resort to untested measures. 

Shôn Lewis & Jeffrey Lieberman, CATIE and CUtLASS: Can We Handle the Truth?, 192 BRIT.

J. OF PSYCHIATRY 161 (2008). 

47. Additional evidence that the second-generation antipsychotics are no more 

effective than — and produce just as many side effects as — the first-generation antipsychotics 

has been supplied by the NIMH-funded Treatment of Early-Onset Schizophrenia Spectrum 

(“TEOSS”) studies, which focused on the treatment of children and adolescents with 

antipsychotic medications. Studies published in the American Journal of Psychiatry in 2008 and 

in the Journal of the American Academy of Child and Adolescent Psychiatry in June 2010 

concluded that the second-generation antipsychotics did not demonstrate superior effectiveness 

over first-generation antipsychotics and were associated with serious side effects, including 

abnormal weight gain and metabolic problems. Linmarie Sikich, et al., Double-Blind 

Comparison of First- and Second-Generation Antipsychotics in Early-Onset Schizophrenia and 

Schizo-affective Disorder: Findings From the Treatment of Early-Onset Schizophrenia Spectrum 

Disorders (TEOSS) Study, 165 AM. J. PSYCHIATRY 1369 (2008); Robert Findling, et al., DoubleCase 3:10-cv-03950-MLC -DEA Document 1 Filed 08/03/10 Page 14 of 80 PageID: 14
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Blind Maintenance Safety and Effectiveness Findings From the Treatment of Early-Onset 

Schizophrenia Spectrum (TEOSS) Study, 49 J. OF THE AM. ACAD. OF CHILD & ADOLESCENT 

PSYCHIATRY 583 (June 2010). The latter of these studies concluded that “more effective and 

safer treatments are needed . . . .” Id. at 593. 

48. Further, Clozaril, which appears to be the most effective second-generation 

antipsychotic medication, can cause agranulocytosis, a potentially fatal blood disorder in which 

the drug triggers a sudden severe deficiency in the number of white blood cells.6 For this reason, 

administration of Clozaril requires frequent blood testing and monitoring, and the drug is 

typically used as a treatment of last resort. 

49. Additionally, Defendant Department of Human Services’ psychopharmacology 

guidelines acknowledge that a survey of patients in long-term treatment with various 

antipsychotic drugs found “high prevalence rates for parkinsonism, akathisia, and tardive 

dyskinesia, or T.D.,” and that “a comparison of such prevalence rates with those of past decades 

suggests that these problems persist, despite the advent of newer [drugs]....” New Jersey 

Division of Mental Health Services Psychopharmacological Practice Guidelines for the 

Treatment of Schizophrenia (2005), at 75. Moreover, Department of Human Services Division 

of Mental Health Services Administrative Bulletin 3:35 (“Prescribing Psychotropic Medication 

in State Psychiatric Hospitals,” January 28, 2010)7 (attached hereto as Exhibit A) states that: 

use of multiple psychotropic medications increases the risk of adverse drug 

effects, drug-drug interactions and medication errors, and evidence suggests that 

such complex regimens are unlikely to improve outcomes, even in challenging 

patients. Such medication regimens are also costly, time-consuming for nurses to 

 

6 See http://www.clozaril.com/info/about/side_effects.jsp. 

7 Available at http://www.state.nj.us/humanservices/dmhs/info/notices/adminbulletins/3_35_rev_jan28_2010.pdf. 

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administer in the hospital, difficult for patients to understand, and hard for them to 

adhere to or maintain in the community. 

50. In sum, the severe and potentially life-threatening side effects of psychotropic 

medications cause many patients to either discontinue their medication or to be unable to retain 

employment in the community, which consigns them to the vicious cycle of repeated psychiatric 

hospitalization. Given the continued pervasiveness of severe side effects from antipsychotic 

drugs, many patients want to be — and should be — involved in decisions regarding their 

treatment, and have a rational basis for rejecting such treatment. 

III. The Right of Psychiatric Patients to Refuse Medication 

51. Two decades ago, recognizing that the right to refuse unwanted medical treatment 

has deep roots in the American justice system, the United States Supreme Court held that “[t]he 

forcible injection of medication into a nonconsenting person’s body represents a substantial 

interference with that person’s liberty.” Washington v. Harper, 494 U.S. 210, 229 (1990). An 

individual’s right to refuse treatment, therefore, can be overridden only in emergencies or when a 

court determines that person to be incompetent to make medical decisions. 

52. Today, the right of psychiatric patients to refuse the involuntary administration of 

psychotropic medication is firmly grounded in the United States Constitution, federal statutes, 

and New Jersey’s Constitution, statutes and regulations. Sadly, New Jersey hospital 

administrators have done little to ensure that these rights have any practical meaning for persons 

confined to psychiatric institutions within the State. 

A. Federal Law Basis for the Right to Refuse Unwanted Medication 

53. Over the last three decades, there has been an overwhelming trend across the 

United States, in both federal and state courts and legislatures, towards respecting the right of 

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individuals to refuse unwanted psychotropic medication and providing due process protections 

for the enforcement of this right. 

54. Almost thirty years ago, in Mills v. Rogers, 457 U.S. 291, 299 (1982), the 

Supreme Court recognized that the federal Constitution recognizes a liberty interest in avoiding 

the unwanted administration of antipsychotic drugs. Much more recently, a court in this District 

ruled that the right to refuse unwanted medication is grounded in the individual’s right to be free 

from bodily intrusion. Brandt v. Monte, 626 F. Supp.2d 469, 486 (D.N.J. 2009) (citing Rochin v. 

California, 342 U.S. 165, 172-74 (1952)). The same court ruled that the right to refuse unwanted 

medication is further grounded in the individual’s right to autonomy and to exercise control over 

her mental faculties. Brandt, 626 F. Supp.2d at 486 (citing Lawrence v. Texas, 539 U.S. 558, 

562 (2003) (“Liberty presumes an autonomy of self that includes freedom of thought....”)). 

Moreover, the Supreme Court has observed that psychotropic drugs are “mind altering,” Mills, 

457 U.S. at 293 n.1, and “alter the chemical balance in a patient’s brain, leading to changes . . . in 

his or her cognitive processes.” Harper, 494 U.S. at 229. See also Scott v. Plante, 532 F.2d 939, 

946 (3d Cir. 1976) (“It is sufficient to recognize that the involuntary administration of drugs 

which affect mental processes, if it occurred, could amount, under an appropriate set of facts, to 

an interference with [a person’s] rights under the first amendment.”). 

1. The Rennie Decisions 

55. In the Rennie v. Klein case, filed in this District in 1977, patients in New Jersey 

psychiatric hospitals, including John Rennie, a former pilot and flight instructor, sued to block 

the State from forcefully drugging them. The patients were represented by lawyers from the 

New Jersey Department of the Public Advocate. District Court Judge Brotman recognized the 

constitutional right of the patients to refuse treatment, and found that a regulation substantially 

similar to the Three-Step Process used today in New Jersey insufficiently protected patients’ 

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substantive constitutional rights. Consequently, Judge Brotman issued an order requiring State 

hospitals to hold hearings to determine whether patients may be medicated against their will, to 

provide a lay “patient advocate” to represent patients at hearings, and to retain independent 

psychiatrists to make the ultimate determination at those hearings. Rennie v. Klein, 476 F. Supp. 

1294, 1313 (D.N.J. 1979). 

56. Subsequently, over the course of two years in the early 1980s, the State of New 

Jersey conducted 105 administrative hearings led by independent decision-makers for psychiatric 

patients who refused medication; the total cost of these hearings was approximately $10,000. 

See Motion for Leave to File and Brief for the N.J. Dep’t of the Public Advocate, Division of 

Mental Health Advocacy as Amicus Curiae in Support of Respondents at 42, Mills v. Rogers, 

457 U.S. 291 (1982) (No. 80-1417). At that time, the New Jersey Department of the Public 

Advocate concluded that “a due process system works effectively, is cost-efficient, promotes the 

doctor-patient relationship, and properly protects patients’ rights.” Id. at 15-16. 

57. In reviewing Judge Brotman’s decision, the Third Circuit ultimately held that 

involuntarily committed mentally ill patients have a constitutional right to refuse administration 

of antipsychotic drugs. The court also held that the right to refuse medication administered on a 

non-emergency basis can be overridden only in two very limited circumstances: when an 

individual presents a danger to herself or others, or when she is incapable of making treatment 

decisions. The Third Circuit concluded, however, that so long as the decision to administer such 

drugs against a patient’s will is based on accepted professional judgment, hearings before an 

independent decision-maker are not constitutionally required. Consequently, according to the 

court, the Three-Step Process, which merely requires review and approval by hospital staff, 

satisfies due process requirements, even though it does not provide for hearings. 

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58. Importantly, the court noted that if, after a reasonable time, New Jersey’s 

procedures were not working, the court could explore other methods to guarantee patients’ 

constitutional rights. Rennie v. Klein, 653 F.2d 836, 851 (3d Cir. 1981) (en banc), aff’d 

following remand, Rennie v. Klein, 720 F.2d 266 (3d Cir. 1983) (en banc). 

59. The facts before the Court today are similar to those that were before Judge 

Brotman thirty years ago, and it is clear that the State of New Jersey has not learned anything 

from the past. Patients in New Jersey psychiatric hospitals are subject to egregious abuse today, 

just as they were three decades ago. Although the law has changed and conditions have 

improved for patients in other states, New Jersey remains frozen in time. In 1979, Judge 

Brotman found that administrators and psychiatrists at every level of New Jersey State 

psychiatric hospitals ignored and subverted patients’ rights to refuse medication. See Rennie, 

476 F. Supp. at 1303, 1305. As will be shown below, see Sections IV-VI, nothing has changed 

over the last three decades — administrators and psychiatrists in the same New Jersey State 

psychiatric hospitals continue to violate patients’ rights. 

2. The Development of Federal Law After Rennie

60. In a trilogy of cases decided after Rennie — Washington v. Harper, 494 U.S. 210 

(1990); Riggins v. Nevada, 504 U.S. 127 (1992), and Sell v. United States, 539 U.S. 166 (2003) 

— the Supreme Court held that the right to refuse medication is guaranteed by the Fourteenth 

Amendment’s Due Process Clause. 

61. Twenty years ago, in Harper, which involved an individual serving a prison 

sentence for robbery, the Supreme Court held that a prisoner with mental illness cannot be 

treated against his will based on the mere “professional judgment” of a physician. Rather, 

medication can only be given to a prisoner against his will if he “suffers from a mental disorder 

and is gravely disabled or poses a likelihood of serious harm to himself or others.” Harper, 494 

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U.S. at 215. The Court ruled that, at a minimum, due process requires there to be some 

independence between the decision-maker and the proponent of the medication.8

62. The Harper Court upheld a prison regulation providing that a decision to 

medicate a prison inmate involuntarily should be made by a hearing committee composed of a 

psychiatrist, a psychologist, and the associate superintendent of the prison. Under the procedure, 

none of the committee members could be involved, at the time of the hearing, in the inmate’s 

treatment or diagnosis; the committee’s decision was subject to review by the prison 

superintendent; and the inmate was entitled to seek judicial review of the decision in a state 

court. Further, the inmate was entitled to the assistance of a lay advisor who had not been 

involved in his case and who understood the psychiatric issues involved. The Harper Court 

concluded that involuntary medication of prisoners was justified by “legitimate penological 

interests,” namely, the State’s need to maintain prison safety and security. Notably, even though 

the Supreme Court recognized the State’s legitimate interest in maintaining prison safety, it was 

not willing to sacrifice an individual’s right to be free from unnecessary and unwanted 

medication. 

 

8 In 1989, Chief Justice Roberts, then in private practice, co-authored an amicus brief for the American 

Psychological Association in support of prisoner Harper, eloquently arguing that individuals are constitutionally 

entitled to have forcible medication decisions reviewed by an independent decision-maker: 

 [A]ntipsychotic drugs have both an inherent potential for abuse and an actual history of indiscriminate 

use by the psychiatric profession. In this respect they are similar to psychosurgery and electroshock 

therapy, highly invasive treatments which psychiatrists embraced enthusiastically and used 

indiscriminately — until their tragic effects became publicized and their use was curtailed by 

legislative, judicial, and scientific pressure. Because many psychiatrists will not heed the warnings in 

the scientific literature as to the dangers and misuse of neuroleptic drugs, independent and unbiased 

decision-makers should decide whether orders for forced medication are justified. 

Amicus Curiae Brief of the American Psychological Association in Support of Respondent at 13-14, 

Washington v. Harper, 494 U.S. 210 (1990) (No. 88-599). 

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63. If individuals with mental illness confined to prisons — which are typically 

designed to punish — are guaranteed procedural rights before being involuntarily drugged, then 

individuals with mental illness involuntarily committed to psychiatric hospitals — which are 

supposed to be therapeutic, not punitive — are entitled to the same if not more dignified 

treatment and greater procedural protections than prisoners. 

64. Following Harper, the Supreme Court confronted whether the forced 

administration of antipsychotic drugs during trial violated a murder defendant’s due process 

rights. In Riggins, the Supreme Court held that the administration of unwanted antipsychotic 

medication infringes a liberty interest and may not be imposed absent a compelling 

governmental interest and the use of the least intrusive means of accomplishing it. The Court 

concluded that non-convicts in the criminal process have more rights than prisoners and required 

the State to show that treatment with antipsychotic medication was medically appropriate and, 

considering less intrusive alternatives, essential for the individual’s safety or the safety of others, 

or for a fair trial. In his concurrence, Justice Kennedy (the author of the majority opinion in 

Harper) stated that he would require an “extraordinary” showing by the State before allowing the 

involuntary administration of antipsychotic drugs for purposes of rendering an accused 

competent for trial, and “express[ed] doubt that the showing can be made in most cases, given 

our present understanding of the properties of these drugs.” Riggins, 504 U.S. at 139. 

65. In 2003, the Supreme Court decided Sell, in which the question was whether an 

individual could be forcibly medicated to render him competent to stand trial. There, the 

Supreme Court held that the Government can involuntarily administer psychotropic drugs to a 

criminal defendant charged with a serious crime in order to render that defendant competent to 

stand trial only if the court determines that treatment is medically appropriate; is substantially 

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unlikely to have side effects that may undermine the fairness of the trial; and, taking account of 

less intrusive alternatives, is necessary significantly to further important governmental interests. 

Crucially, the Sell decision requires due process and a judicial hearing — more than required in 

Harper — before the administration of medication, in order for the right to refuse such 

medication to have any practical meaning. 

66. The Harper, Riggins and Sell cases make it clear that (i) a qualified right to refuse 

medication is rooted in the United States Constitution; (ii) the pervasiveness of side effects is a 

key factor in the determination of the scope of the right; (iii) the state bears a 

considerable burden in medicating a patient over objection; and (iv) medical authorities must 

consider lesser-intrusive alternatives before involuntarily administering medication.9 

67. To the extent that Harper, Riggins and Sell involved inmates in prisons or 

individuals facing criminal trial, it follows that individuals in psychiatric hospitals with mental 

illness must have equal or greater rights, since psychiatric hospitals are by definition designed to 

treat, not punish. See Rennie, 653 F.2d at 846 (“The Constitution is at least as viable behind the 

walls of a psychiatric hospital as in a prison.”). In fact, “[c]ivilly committed patients may have a 

greater interest in avoiding the unwanted administration of antipsychotic drugs than criminal 

defendants, since civilly committed patients have not been found guilty of committing a crime.” 

 

9 The Americans with Disabilities Act (the “ADA”) reinforces the State’s obligation to provide less restrictive 

treatment alternatives. Under the ADA, the State of New Jersey must provide services to qualified patients 

with disabilities in the most integrated setting appropriate to their needs. ADA, 42 U.S.C. § 12132 (1990) 

(“[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in 

or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to 

discrimination by any such entity.”). Additionally, in Olmstead v. L.C., 527 U.S. 581 (1999), the Supreme 

Court found a limited right to community treatment under the ADA, pursuant to which states are required to 

explore less restrictive treatments. See also Helen L. v. DiDario, 46 F.3d 325, 332 (3d Cir. 1995) (state violated 

ADA by requiring that individual receive needed care services in nursing home rather than through attendant 

care program in her own home). 

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Brandt, 626 F. Supp.2d at 486 n. 19. See also Youngberg v. Romeo, 457 U.S. 307, 321-22 

(1982) (“Persons who have been involuntarily committed are entitled to more considerate 

treatment and conditions of confinement than criminals whose conditions of confinement are 

designed to punish.”). New Jersey, however, has failed to grant equal or greater rights to 

individuals with mental illness who are not incarcerated in penal institutions. In fact, today in 

New Jersey psychiatric patients have less rights when it comes to refusing medication than 

persons with mental illness incarcerated in New Jersey’s prisons and jails. 

68. Further, regulations issued by the federal Centers for Medicare & Medicaid 

Services, which apply to Defendants, provide that a patient in a psychiatric hospital has the right 

to be “informed of his or her health status, [to be] involved in care planning and treatment, and 

[to be] able to request or refuse treatment.” 42 C.F.R. § 482.13(b)(2) (2006). 

B. New Jersey Law Basis for the Right to Refuse Unwanted Medication 

69. In addition to being out of touch with federal law, New Jersey’s current practices 

are out of touch with New Jersey’s own constitution and laws. Forced medication without due 

process violates Article I, paragraph 1 of the New Jersey Constitution, which grants fundamental 

and “unalienable” rights of “liberty” and “safety” to all people. N.J. Const. art. I, § 1. 

70. Forced medication without due process also violates the guarantee of New Jersey 

law that “[e]very individual who is mentally ill shall be entitled to fundamental civil rights . . . .” 

N.J. STAT. ANN. § 30:4-24.1 (1975). Every patient in treatment in psychiatric hospitals in the 

state is entitled to all rights set forth in the New Jersey Patients’ Bill of Rights. N.J. STAT. ANN. 

§ 30:4-24.2 (1975). This law explicitly provides that a patient may not be presumed to be 

incompetent because she has been examined or treated for mental illness, regardless of whether 

such evaluation or treatment was voluntarily or involuntarily received. Additionally, the 

Patients’ Bill of Rights provides that: 

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(a) patients have the right to be free from unnecessary or excessive medication; 

(b) no medication shall be administered unless at the written order of a physician; 

(c) the attending physician shall review the drug regimen of each patient under his care at 

least weekly; 

(d) all prescriptions shall be written with a termination date not exceeding 30 days; 

(e) medication shall not be used as punishment, for the convenience of staff, as a 

substitute for a treatment program, or in quantities that interfere with the patient’s 

treatment program; and 

(f) voluntarily committed patients shall have the right to refuse medication. 

71. Moreover, forced medication without due process violates the requirements of the 

Patients’ Bill of Rights that patients have the right to the least restrictive conditions necessary to 

achieve the purposes of treatment, the right to privacy and dignity, the right to be free from 

physical restraint and isolation (except for emergency situations), and the right to be free from 

corporal punishment. Although New Jersey law affords patients the right to enforce any of these 

rights by civil action or other remedies otherwise available by common law or statute, patients 

are effectively unable to assert these remedies, as will be shown below in Section IV.A. All of 

these rights, therefore, are illusory, as far as Plaintiff’s constituents are concerned. 

72. Similarly, forced medication without due process violates regulations 

promulgated by Defendant DHSS that guarantee each New Jersey hospital patient the right to 

give informed, written consent prior to the start of nonemergency treatment, only after a 

physician has explained — in terms that the patient understands — specific details about the 

recommended procedure or treatment, the risks involved, the possible duration of incapacitation, 

and any reasonable medical alternatives for care and treatment. DHSS regulations also state that 

if a patient is incapable of giving informed, written consent, consent must be sought from the 

patient’s next of kin or guardian or through an advance directive, to the extent authorized by law, 

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and that patients have a right to refuse medication and treatment to the extent permitted by law 

and to be informed of the medical consequences of refusal. N.J. ADMIN. CODE 8:43G-4.1 

(2005). 

73. These New Jersey laws and regulations give rise to liberty interests protected by 

the Due Process Clause of the Fourteenth Amendment, so that patients may insure that these 

state-created rights are not arbitrarily abrogated. See Vitek v. Jones, 445 U.S. 480, 488-89 

(1980) (involuntary transfer of a prisoner to a mental hospital pursuant to state law implicates a 

liberty interest protected by the Fourteenth Amendment’s Due Process Clause). 

74. New Jersey’s failure to respect the rights of psychiatric patients is all the more 

disturbing due to the substantial due process protections the State provides to other 

institutionalized persons, in particular individuals with developmental disabilities and prisoners. 

Persons with developmental disabilities residing in facilities operated by Defendant Department 

of Human Services are provided a judicial hearing and a court-appointed guardian before they 

can be involuntarily medicated with psychotropic drugs. See N.J. Department of Human 

Services, Division of Developmental Disabilities (“DDD”) Division Circulars Nos. 2110 and 

4111; N.J. ADMIN. CODE 10:43-3.1(a) (2008); N.J. ADMIN. CODE 10:43-4.1 (2008). 

75. Further, as mandated by Harper, an inmate in a New Jersey prison who has a 

mental illness is entitled to a hearing before he can be involuntarily medicated with psychotropic 

drugs. Significantly, the hearing is conducted by a panel of three professionals, none of whom 

may be currently involved in the inmate’s treatment or diagnosis, and the prisoner may not be 

 

10 Available at http://www.state.nj.us/humanservices/ddd/documents/ddd%20web%20current/CIRCULARS/DC21.pdf.

11 Available at http://www.state.nj.us/humanservices/ddd/documents/ddd%20web%20current/CIRCULARS/DC41.pdf.

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medicated until the panel reaches a decision. The prisoner is provided advance notice of the 

hearing and has the right to be present at the hearing, to have the assistance of an advisor, to call 

and confront witnesses and present evidence, and to appeal the panel’s decision. See N.J.

ADMIN. CODE 10A:16-11.1 et. seq. (2007). 

76. Plaintiff’s constituents, unlike persons with developmental disabilities and prison 

inmates with mental illness, do not receive notice, assistance and the right to meaningfully 

participate in a hearing before they are forcibly drugged. 

C. International Law Basis for the Right to Refuse Unwanted Medication 

77. New Jersey’s failures are underscored by the fact that an expansion of the rights 

of people with disabilities has taken place not only in the United States, but also internationally. 

In May 2008, many countries ratified the Convention on the Rights of People with Disabilities 

(the “CRPD”).12 One of the purposes of the CRPD is “to promote, protect and ensure the full 

and equal enjoyment of all human rights and fundamental freedoms by all persons with 

disabilities, and to promote respect for their inherent dignity.” (CRPD, Art. 1.) Among the 

many rights of people with disabilities protected by the CRPD are the rights to equal recognition 

under the law (Art. 12), access to justice (Art. 13), and to live in the community, with choices 

equal to others. (Art. 19.) The United States signed the CRPD in 2009, and under the Vienna 

Convention on the Law of Treaties, once a nation signs a Convention, it is “obliged to refrain 

from acts which would defeat the object and purpose” of that Convention. Vienna Convention 

on the Law of Treaties art. 18, May 23, 1969, 1155 U.N.T.S. 331.13 Although the United States 

 

12 See http://www.un.org/disabilities/documents/convention/convoptprot-e.pdf. 

13 The U.S. has signed but not ratified the Vienna Convention on the Law of Treaties, but it regards this 

convention as “the authoritative guide to current treaty law and practice.” See Secretary of State Rogers’ Report 

to the President, Oct. 18, 1971, 65 DEP’T ST. BULL. 684, 685 (1971). 

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has not yet ratified the CRPD, the U.S. Supreme Court has made it clear that “the opinion of the 

world community, while not controlling [the Court’s] outcome, does provide respected and 

significant confirmation for [its] own conclusions.” Roper v. Simmons, 543 U.S. 551, 578 

(2005). 

IV. The Three-Step Process Provides No Meaningful Due Process Protections and is 

Therefore Unconstitutional 

78. Today, New Jersey purports to protect the right to refuse unwanted medication 

through the Three-Step Process. As discussed above, the Three-Step Process is a peer review 

procedure that was approved in the Third Circuit’s Rennie decision, rendered more than a 

quarter-century ago. Over substantial dissent, the Third Circuit in 1983 held that, on the facts 

before it, compliance with the Three-Step Process, assuming the exercise of professional 

judgment, protected a patient’s federal substantive and procedural due process rights. See 

Rennie, 720 F.2d at 269-70. The Three-Step Process is now set forth in Department of Human 

Services Administrative Bulletin 5:04 (“The Administration of Psychotropic Medication to Adult 

Voluntary and Involuntary Patients,” September 15, 1983) (“A.B. 5:04”)14 (attached hereto as 

Exhibit B), which includes emergency and non-emergency procedures for forcible medication.15 

Whatever the merits were of Rennie at the time it was decided, the Three-Step Process today 

fails to provide basic due process protections and is wholly unconstitutional. 

 

14 Available at http://www.state.nj.us/humanservices/dmhs/info/notices/adminbulletins/5_04.pdf. 

15 Just last year, New Jersey’s emergency involuntary medication procedure — which is also regulated by A.B. 

5:04 — was the subject of litigation in this District brought by a patient who had been hospitalized at Ancora. 

In Brandt v. Monte, the Court ordered a trial on plaintiff’s claims that his constitutional rights had been violated 

because hospital staff deviated from standards of professional judgment and failed to provide an independent 

and impartial review in administering medication over his objection. Brandt, 626 F. Supp.2d at 475. 

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79. New Jersey’s forced medication practices must be evaluated in light of the 

Supreme Court’s decision in Youngberg v. Romeo, 457 U.S. 307 (1982). In Youngberg, the 

Court held, in the context of an action for money damages, that the Due Process clause of the 

Fourteenth Amendment prohibits the State from restraining patients except and to the extent 

professional judgment deems such restraint necessary to assure patients’ safety. Id. at 324. 

Treatment is not adequate if it substantially departs from generally accepted professional 

judgment, practice, or standards. Id. at 320-23. States are thus compelled by the Constitution to 

ensure that patients are free from hazardous drugs that are “not shown to be necessary, used in 

excessive dosages, or used in the absence of appropriate monitoring for adverse effects.” 

Thomas S. v. Flaherty, 699 F. Supp. 1178, 1200 (W.D.N.C. 1988), aff’d, 902 F.2d 250 (4th Cir. 

1990). Excessive use of chemical restraints, excessive dosages of medication, and unjustified 

use of polypharmacy constitute substantial departures from professional standards. See Thomas 

S., 699 F. Supp. at 1188-89. Moreover, “restraint should only be used as a last resort.” Id.; 

Davis v. Hubbard, 506 F. Supp. 915, 943 (W.D. Ohio 1980). 

80. Significantly, the Rennie litigation preceded the U.S. Supreme Court’s decisions 

in Harper, Riggins and Sell — all of which rejected peer review procedures similar to the ThreeStep Process. Because the Three-Step Process fails to comport with contemporary constitutional 

requirements, the Third Circuit would likely reject the Three-Step Process today. 

81. Under New Jersey’s Three-Step Process, if a patient objects to taking prescribed 

psychotropic medication, a psychiatrist can initiate the Three-Step Process and force the patient 

to take the medication without having to show that the patient is a danger to herself or others. 

The psychiatrist must simply believe that either (1) the patient is incapable, without medication, 

of participating in any treatment plan available at the hospital that will give her a realistic 

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opportunity of improving his/her condition; or (2) a treatment plan which includes medication 

would probably improve the patient’s condition within a significantly shorter time period, or

there is a significant possibility that the patient will harm herself or others before improvement 

of her condition is realized, if medication is not administered. 

82. As inadequate as it is, the Three-Step Process is not even applied in psychiatric 

hospitals that are licensed by Defendant DHSS but not administered by the Department of 

Human Services.16 In other words, county and private psychiatric facilities do not follow the 

Three-Step Process. For example, at Monmouth Medical Center, a psychiatric patient may be 

forcibly medicated simply upon the authorization of two psychiatrists. See Monmouth Medical 

Center Policy #890-73-0000, “Administering of Psychotropic Medication Overriding a Patient’s 

Right to Refuse” (August 2008) (attached hereto as Exhibit C).17 Therefore, patients in many 

psychiatric hospitals, including private hospitals, lack even the illusion of due process afforded 

by the Three-Step Process. They can be, and are, forcibly drugged without any due process 

whatsoever. 

A. New Jersey Institutions Fail to Comply with the Three-Step Process 

83. New Jersey’s Three-Step Process is an abject failure and has been for many years. 

Non-compliance with its written requirements is the norm and record-keeping is shoddy at best. 

Moreover, even if the State were to comply with the provisions of A.B. 5:04, it is clear that the 

 

16 This section explains how the Three-Step Process applied in State psychiatric hospitals violates patients’ 

constitutional rights. To the extent that county and private hospitals do not even apply the Three-Step Process 

or apply a lesser version of same, a fortiori, these hospitals’ involuntary medication procedures also violate 

patients’ constitutional rights. 

17 Under this provision, medication can be administered over objection for a maximum of seven days, after which 

new authorization must be sought from two psychiatrists. 

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Three-Step Process does not meet contemporary standards of due process or equal protection and 

is emblematic of Defendants’ failure to involve Plaintiff’s constituents in their own recovery. 

84. Significantly, few patients are even made aware of the existence of the Three-Step 

Process or the so-called Rennie Advocate, a lay patient advisor position created by New Jersey 

during the Rennie litigation. As will be explained below, the Rennie Advocates are ineffective, 

and those patients who are made aware of the Three-Step Process are not allowed to participate 

actively in it, which makes it a meaningless exercise in paper shuffling. 

85. The Three-Step Process is a mere rubber stamp and it may take as little as a few 

hours for hospital staff to sign the Three-Step Form, which allows hospital staff to involuntarily 

inject a patient with psychotropic medication. See Brandt, 626 F. Supp.2d at 473 (“That 

morning, [Dr.] Monte initiated the [T]hree-[S]tep . . . Procedure for medicating a patient 

involuntarily. By noon, this procedure had been completed.”).18

86. The Three-Step Process merely requires hospital staff to complete three informal 

steps before involuntarily administering psychotropic medication. In the first step, if a patient 

refuses psychotropic medication, the treating psychiatrist must meet with the patient to discuss, 

and attempt to respond to, the patient’s concerns about the medication. The psychiatrist can 

suggest that the patient discuss the matter with a person of her own choosing, such as a relative 

 

18 The New Jersey Department of the Public Advocate concluded two decades ago that the Three-Step Process 

does not protect patients’ rights, arguing that 

 The New Jersey experience shows that a refusing patient is 24 times more likely to achieve a 

discontinuation or reduction of medication when there is external review . . . than he is when the 

review is solely internal. Mandatory external review has provided meaningful review with the real 

potential that objecting patients would be afforded significant relief. Conversely, internal review 

lacks that potential and constitutes a “rubber stamp” process disguised as independent review, thus 

denying due process of law. 

Brief for the New Jersey Department of the Public Advocate as Amicus Curiae in Support of Respondent at 51-

52, Washington v. Harper, 494 U.S. 210 (1990) (No. 88-599). 

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or friend, and must advise the patient that a Rennie Advocate is available to provide assistance to 

the patient. If the patient still refuses medication, the psychiatrist must complete the first section 

of the Three-Step Form and proceed to the second step. 

87. Defendants’ failure to comply with even the rudimentary dictates of the ThreeStep Process is shown by failures in documentation, which abound at each step. The failure to 

follow the first step of the Three-Step Process is evidenced by the fact that the Three-Step Form 

used in State hospitals to document the steps does not even include a box to indicate that a 

psychiatrist has personally examined a patient and discussed medication with her. Also, there is 

no requirement that the psychiatrist specify precise medications or dosages on the form. In 

practice, psychiatrists often simply write in a laundry list of psychotropic medications. 

88. In the second step, if the patient still refuses to take the medication and the 

psychiatrist believes that medication is a necessary part of the patient’s treatment plan, the 

psychiatrist must advise the patient that the matter will be discussed at a meeting of the patient’s 

treatment team, and invite the patient to attend that meeting. The treatment team must meet to 

discuss the psychiatrist’s determinations and recommendations and the patient’s response. If the 

patient is present, the team must attempt to formulate a treatment plan that is acceptable to the 

patient and the team. The patient may agree to take medication unconditionally or under certain 

conditions that are acceptable to the psychiatrist. If the patient is not present, the team and the 

psychiatrist must discuss the psychiatrist’s recommendations and the patient’s response, and the 

conclusions must be documented in the patient’s chart. If the patient still refuses, the psychiatrist 

must complete the second section of the Three-Step Form, and proceed to the third step. 

89. Defendants’ failure to follow the second step is shown by the fact that patients are 

infrequently given the option of attending the treatment team meeting. Even the Rennie

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Advocates seldom attend. Moreover, many Three-Step Forms lack any documentation of the 

completion of this step and bear only the program coordinator’s signature, not the signatures of 

the treatment team, as required. Further, the Three-Step Form facilitates non-compliance with 

A.B. 5:04 because it does not require an explanation for the patient’s non-attendance at the 

treatment team meeting; in fact, on most patients’ forms, there is no indication whether the 

patient attended the treatment team meeting at all. 

90. In the third step, if the patient still refuses to take prescribed medication and the 

psychiatrist still believes that the medication is a necessary part of the patient’s treatment plan, 

the psychiatrist turns to his supervisor, the facility Medical Director, who must personally 

examine the patient and review the patient’s chart. If the Medical Director agrees with the 

psychiatrist’s treatment plan, he must complete the third section of the Three-Step Form and only 

then can the patient be involuntarily medicated — which frequently occurs by intramuscular 

injection. 

91. The State’s failure to follow the third step is demonstrated by the fact that 

Medical Directors rarely if ever overturn treating psychiatrists’ decisions. In fact, Medical 

Directors often do not even perform the third step themselves but rather delegate this function to 

a lower ranking staff member, making the third step a mere pretext or sham. Moreover, the 

Three-Step Form does not require the Medical Director to specify whether he has met with the 

patient or provide the patient’s reasons for refusing medication. 

92. Additionally, the State fails to comply with the follow-up requirements of the 

Three-Step Process. As the Third Circuit noted in Rennie, 653 F.2d at 849, a key safeguard for 

patients’ rights is the requirement that the Medical Director make a weekly review of the 

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treatment program of each patient who is being drugged against his will to determine whether 

forced drugging is still necessary. The State has wantonly abandoned this due process safeguard. 

93. New Jersey’s State hospitals are filled with patients on refusing status who do not 

have a current psychiatrist’s monthly progress note — much less the required weekly note — 

legitimizing the continued use of involuntary medications. Often, psychiatrists do not even sign 

the perfunctory monthly “Medication Review Forms” that are filled out by the Rennie

Advocates. Moreover, there is no expiration date to the Three-Step Forms. Once a decision is 

made that a patient should be medicated involuntarily, there is no further formal review and 

involuntary medication can continue for the duration of the patient’s hospitalization, which lasts 

for years in the case of many patients in New Jersey State hospitals. 

94. Further, many patients do not even undergo the Three-Step Process because they 

are coerced into not objecting to medication. For example, State hospital staff have used the 

emergency version of the Three-Step Process — which may be invoked only in crisis situations 

— to coerce patients to agree to take psychotropic medication on a non-emergency basis. In 

Brandt, the Court found that “a number of Ancora employees testified in depositions that the first 

step in attempting to medicate a patient who refuses to grant consent is to issue an Emergency 

Certificate as a prerequisite to the Non-Emergency Procedure.” See Brandt, 626 F. Supp.2d at 

479. Tellingly, a psychiatrist at Ancora testified that she engaged in this coercive practice 

because it facilitated attainment of patient consent. Id. Even a psychiatrist hired by the State as 

an expert witness in the Brandt litigation admitted that the State’s practices were coercive. Id. 

Additionally, patients are often threatened by hospital staff with painful and degrading 

intramuscular injections if they refuse to take prescribed psychotropic medication by mouth. 

Those patients who are assertive enough to refuse medication and consequently undergo the 

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Three-Step Process often feel that the treatment team meetings are little more than an 

opportunity for hospital employees to bully them into agreeing to take medication. 

95. A patient has very limited recourse after the Medical Director decides that the 

patient can be involuntarily medicated. In theory, the patient can file a petition in the Superior 

Court under N.J. Stat. Ann. 30:4-27.11c(d) (1991). The reality, however, is that appeals of 

medication orders are seldom, if ever, filed because patients lack counsel, and unlike prisoners, 

they lack access to a law library or other means of access to the courts. Moreover, the burden 

should be on the State to justify forced medication at a fair hearing. The State should not be 

allowed to shift the burden to the patient to show why the State should not be allowed take away 

her constitutional rights.

96. Ironically, as discussed in more detail below, despite the fact that even 

perfunctory completion of the Three-Step Form assumes that a patient is competent to make 

health care decisions, the Three-Step Process endorses the stripping away of patients’ rights to 

make choices about psychotropic medication and their health care. 

B. Rennie Advocates Provide Little Assistance to Patients and Lack 

Independence 

97. The failure of the Three-Step Process to protect patients’ rights is underscored by 

the utter ineffectiveness of those staff members who are supposed to advocate for patients. 

Pursuant to A.B. 5:04, each psychiatric institution must have a Rennie Advocate, who “shall be 

engaged in assisting the patients with respect to medication issues.” As initially conceived, 

Rennie Advocates were supposed to be attorneys, psychologists, social workers, registered 

nurses, and paralegals, or have any equivalent experience. Rennie, 476 F. Supp. at 1313. The 

State is required to provide Rennie Advocates with training in the effects of psychotropic 

medication and the principles of legal advocacy, with supervision by an attorney and psychiatrist 

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in the Office of the Commissioner of the Department of Human Services. Id. Crucially, Rennie

Advocates must be independent from the hospital bureaucracy. Id. at 1311. Today, however, it 

is unclear what if any required experience, training or supervision Rennie Advocates are given, 

and they completely lack independence from the hospital bureaucracy. For example, at Ancora, 

the Rennie Advocate reports to the hospital’s Director of Quality Improvement, who reports to 

the hospital’s Chief Executive Officer. 

98. Moreover, the Three-Step Process does not require that the Rennie Advocate 

follow the expressed preference of the patient, or assist the patient in asserting her right to refuse 

medication. On the contrary, only after the Three-Step Process is completed for a particular 

patient is the Rennie Advocate even required to be notified that a patient will be involuntarily 

medicated. At that stage, the Rennie Advocate’s sole function is to “review” the patient’s ThreeStep Form and complete a Medication Review Form. 

99. Further, because the Rennie Advocates are hospital employees, they lack 

independence and are often viewed by patients as an extension of the treatment team and not as 

independent advocates for patients. Many patients do not even learn of the existence of Rennie

Advocates because the Advocates fail to notify patients about the Three-Step Process. Often, 

those patients lucky enough to learn about the Rennie Advocates never actually meet them. Even 

when a patient is fortunate to find a Rennie Advocate, little advocacy or assistance is provided 

because the Rennie Advocates most often side with the treatment team and almost never request 

independent psychiatric reviews. In many situations, therefore, the Rennie Advocate is made to 

function as a clerk, filing paperwork but not providing any advocacy or comfort to patients. 

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100. In both a stunning breach of the terms and spirit of A.B. 5:04, as well as tacit 

admission that the Rennie Advocate is a completely ineffectual position, Hagedorn Psychiatric 

Hospital has not even had a Rennie Advocate for the last two years. 

C. Independent Reviews Are Almost Never Requested or Performed 

101. The striking inadequacy of the Three-Step Process is further illustrated by the 

almost complete lack of independent reviews of involuntary medication decisions. On paper, the 

Medical Director, the Rennie Advocate, or another staff member — but not the patient — may 

request an independent psychiatric review of a patient’s need for medication, but the patient may 

be medicated while any such independent review is pending. If a request is made for an 

independent review, the Medical Director alone decides whether such a review will be 

performed. 

102. If the Medical Director decides to convene an independent review, the 

Department of Human Services designates a psychiatrist to examine the patient. The examiner 

then decides whether the patient can be involuntarily medicated, and any such authorization is 

effective for up to 90 days. A “review” of the examiner’s decision may be sought by either the 

patient or the Medical Director. The Medical Director can seek review by asserting either that 

there was a change in the patient’s condition or new facts. The patient, however, can only seek 

review on the ground that the examiner’s decision is not being followed. Thus, the patient and 

the Rennie Advocate are powerless to challenge the merits or accuracy of the examiner’s 

decision. Moreover, the Three-Step Process does not specify who performs this “review of the 

review,” or how it is to be conducted. Indeed, Plaintiff is unaware of a “review of the review” 

ever occurring. 

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103. Curiously, the decision of the independent reviewer to medicate is the only 

outcome in the Three-Step Process wherein a decision to medicate is time limited; in all other 

circumstances the decision stands indefinitely, perhaps for years. 

104. During the independent review process initiated by the Rennie Advocate, the 

patient is entitled to have an attorney present “at his/her request and expense.” Given that most 

of the patients in New Jersey State hospitals are indigent, however, the right to an attorney 

during the Three-Step Process is purely illusory. This stands in stark contrast to the law in many 

states mandating an absolute right to counsel in medication hearings. See e.g., Rivers v. Katz, 67 

N.Y.2d 485, 497 (N.Y. 1986); MASS. GEN. LAWS ch. 123 § 5 (2003); VA. CODE ANN. § 37.2-

1101 (2009); TEX. HEALTH & SAFETY CODE ANN. § 574.105 (2010); ALASKA STAT. § 47.30.839 

(1992). In fact, the entire independent review process is also illusory because it rarely, if ever, 

happens. Not only are Rennie Advocates not required to request independent reviews, they 

hardly ever do so. Further, there is no indication that Rennie Advocates ever discuss with 

patients the possibility of independent reviews, and the Three-Step Process does not require such 

consultations. Upon information and belief, hospital officials actively discourage Rennie

Advocates from requesting independent reviews, telling them that there is no money to pay for 

independent reviews or that no qualified person will conduct a review for the amount of money 

the hospital is willing to pay. 

105. Experience shows that reviews of forced medication decisions hardly ever occur 

in New Jersey. In a sample of approximately 60 patients in State hospitals who underwent the 

Three-Step Process within a three-month period in 2009-2010, not a single patient had an 

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independent review.19 Moreover, although each State hospital is required to have a Rennie

Advocate, upon information and belief, one hospital’s Rennie Advocate has requested and 

obtained only one independent review in his fourteen years of service. At Greystone, 

independent evaluations have been requested for only three patients over the last six years. At 

Ancora, upon information and belief, although numerous patients have asked for independent 

reviews, not a single one has been requested by hospital staff in recent years and there is no list 

of independent evaluators from which to choose. 

106. Even worse, at Trenton Psychiatric, upon information and belief, the Rennie

Advocate did not request a single independent review on behalf of any patient in the six-year 

period from 2004 to 2010. When an independent review was requested by DRNJ in October 

2009 for constituent N.B. at Trenton Psychiatric, Defendant Department of Human Services 

refused to perform one. The reason, according to Karen Piren, the assistant to the Medical 

Director of Department of Human Services’ Division of Mental Health Services, was that her 

office did not feel that an independent review was necessary for N.B. because, according to Ms. 

Piren, the purpose of such a review is to determine whether the patient needs to be medicated and 

does not deal with recommendations regarding the specifics of any prescriptions. Not only was 

Ms. Piren mistaken about the purpose of the review, but in fact, DRNJ asked for a review of 

whether medication was needed at all. 

 

19 The State’s failure to conduct independent reviews of involuntary medication decisions — despite the fact that 

A.B. 5:04 provides for such reviews — parallels the State’s disconnection from reality in the Rennie litigation. 

In 1974 and 1978, State officials reported that not a single case of tardive dyskinesia had been observed at 

Ancora Psychiatric Hospital. Angel Castillo, Mental Patients’ Right to Refuse Medication is Contested in 

Jersey, N.Y. Times, March 28, 1981. However, in 1979, as a result of the Rennie litigation, the hospital 

acknowledged in court that tardive dyskinesia had, in fact, affected an estimated 25 to 40 percent of its patients. 

Id. 

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107. Moreover, because under the Three-Step Process, any “independent” psychiatrists 

are chosen solely by the State, even were the State to conduct reviews, they would not be truly 

independent. Patients should have the right to choose their own independent examiners. At a 

minimum, an independent examiner should be mutually chosen by the institution and the patient 

(or her counsel). Significantly, patients in New Jersey are entitled to be examined by a truly 

independent psychiatrist prior to being civilly committed. In re Gannon, 301 A.2d 493, 494 

(Somerset Cty. Ct. 1973) (a commitment hearing “is of little value, if not actually a sham, when 

the only testimony is that of the certifying psychiatrist”). This right to an independent examiner 

should apply equally for patients who refuse medication. 

D. The Notion of “Functional Incompetence” Allows Doctors to Circumvent the 

Process 

108. The Three-Step Process assumes that a patient is competent to make decisions 

about their medical treatment. Psychiatrists, however, can perform an easy “end-run” around the 

Three-Step Process by simply concluding that the patient is “functionally incompetent,” on the 

ground that the patient is not capable of giving informed consent. If the psychiatrist decides that 

(1) medication is a necessary part of the patient’s treatment plan, (2) the patient is unable, 

because of his/her illness, to give informed consent to the medication, and (3) the patient is not 

“refusing” the medication, the psychiatrist simply fills out the first part of the Three-Step Form 

and the patient can be involuntarily injected. Moreover, the Three-Step Process does not provide 

for any institutional or judicial review of psychiatrists’ determinations of functional 

incompetence.20

 

20 It is possible that the functional incompetence provision of A.B. 5:04 was designed to provide for review of the 

treatment of long-term patients who consent to take medication but are incompetent, to ensure that they are not 

(Continued...) 

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109. Nowhere else in New Jersey law is the determination of a person’s legal 

competency to consent to treatment left solely to the discretion of the treating physician. In fact, 

New Jersey provides court hearings to people who have a variety of medical issues if those 

persons are at odds with medical providers over treatment and the medical providers question the 

person’s competency to make informed decisions. For example, New Jersey has provided a 

court hearing in order to determine the competency of a person with a gangrenous foot who 

would not consent to an amputation, and whom the medical personnel believed to be 

incompetent because he would not consent. See In the Matter of William Schiller, 372 A.2d 360, 

368 (N.J. Super. Ct. Ch. Div. 1977). New Jersey also provided a court hearing to a person who 

was comatose and could not communicate at all. See In re Quinlan, 355 A.2d 647 (N.J. 1976). 

Paradoxically, the same psychiatric patient who can be forced to take psychotropic medication 

under the Three-Step Process would be entitled to counsel and a court hearing if the hospital 

wished to administer medical treatment, such as dialysis, over objection. 

110. Indeed, informed consent is an essential part of medical care. In New Jersey, 

“informed consent” is “what the physician should disclose to a reasonable patient in order that 

the patient might make an informed decision” regarding her treatment. Largey v. Rothman, 540 

A.2d 504, 505 (N.J. 1988). Yet, under the Three-Step Process, a psychiatrist can simply declare 

a patient functionally incompetent, allowing the State to circumvent the Three-Step Process, 

rendering it meaningless. Further, the very notion of “functional incompetence” eviscerates the 

fundamental presumption — codified under New Jersey law — that psychiatric patients may not 

 overmedicated. In practice, however, psychiatrists at State hospitals do not appear to use the functional 

incompetence provision for this purpose. 

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be assumed to be incompetent to make treatment decisions. See N.J. STAT. ANN. 30:4-24.2(c) 

(1975). 

111. The Three-Step Process is thus based on the outdated notion that mental illness 

renders a person incompetent, which has been proven to be clinically inaccurate. The MacArthur 

Treatment Competence Study, published in 1995, confirms that mental illness cannot be equated 

with incompetence, that many individuals with mental illness retain full decision-making 

capacity, and that even when such illness impairs capacity in one area, it may leave capacity 

unimpaired in others. The study measured four criteria of decision-making capacity — 

communicating a choice, understanding relevant information, appreciating a situation and its 

consequences, and reasoning about treatment options — and concluded that nearly one half of 

the schizophrenic subjects and 76% of the depressed subjects performed in the “adequate” range 

across all decision-making measures, and a significant portion performed at or above the mean 

for persons without mental illness. See Thomas Grisso & Paul Appelbaum, The MacArthur 

Treatment Competence Study III: Abilities of Patients to Consent to Psychiatric and Medical 

Treatments, 19 LAW & HUM. BEHAV. 149, 171 (1995). 

112. The authors of the MacArthur study concluded that those who would deny 

individuals with mental illness equal decision-making rights “no longer can maintain that all

persons who are in need of hospitalization for mental disorder lack the requisite ability to make 

decisions regarding their treatment.” Id. at 171. The study demonstrates the need for 

individualized determinations of competency and shows the falsity of the assumption that mental 

illness equates with impaired ability to make treatment decisions. 

113. Recent research has confirmed the findings of the MacArthur Competence Study. 

For example, in an article published in the New England Journal of Medicine in 2007, Dr. Paul 

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Appelbaum, one of the key MacArthur researchers and the past President of both the American 

Psychiatric Association and of the American Academy of Psychiatry and the Law, noted that the 

reliability of unstructured judgments of competence by physicians has been poor (in some cases 

no better than chance), and that if an evaluator believes that a patient is incompetent to make a 

treatment decision, unless the urgency of the patient’s medical condition requires that a 

substituted decision be sought immediately, efforts should be made to identify the causes of the 

impairment — which may include the patient’s sedation due to psychotropic medication and lack 

of access to information — and to remedy them. Paul S. Appelbaum, Assessment of Patients’ 

Competence to Consent to Treatment, 357 NEW ENG. J. MED. 1834, 1838 (Nov. 1, 2007). 

114. Similarly, a quantitative review of competence studies published in the journal 

Schizophrenia Bulletin in 2006 concluded that impairment in capacity is not a distinguishing 

feature of schizophrenia, that receiving higher doses of medications may adversely impact 

cognition, and that in-hospital educational techniques might help improve the capacity of 

patients. Dilip Jeste, Colin Depp and Barton Palmer, Magnitude of Impairment in Decisional 

Capacity in People With Schizophrenia Compared to Normal Subjects: An Overview, 32 

SCHIZOPHRENIA BULL. 121 (Jan. 2006). Thus, over-medication may in fact interfere with 

patients’ ability to participate in their medical treatment. 

E. New Jersey Institutions Fail to Exercise Professional Judgment in 

Medication Practices 

115. Patients’ concerns about psychotropic medication have proven to be well 

founded, not only because of the severe side effects of such medication, but because New Jersey 

hospitals often fail to exercise professional judgment in medicating patients. After conducting an 

exhaustive investigation of Ancora Hospital, the United States Department of Justice in August 

2009 issued a damning 40-page report (see Exhibit D, attached hereto), concluding that: 

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Ancora’s psychopharmacology practices also substantially deviate from 

generally accepted professional standards in several important respects. 

Extensive PRN [as-needed medication] use reflects reactive care and subtherapeutic treatment of the patient’s underlying condition. Although Ancora’s 

pharmacy contractor is supposed to audit high PRN usage, the audit described to 

us has a retrospective design that is unlikely to provide timely and useful data to 

psychiatrists to better manage the treatment of these patients. Moreover, in 

November 2008, a month when several patients experienced continued excessive 

PRN use, including D.D., who had 92 PRNs, not even this retrospective audit was 

conducted, and thus, pharmacy failed to provide data about this important 

indicator that should have been considered in patient care. Another important 

safeguard in psychopharmacology is the monitoring of adverse drug reactions 

(“ADRs”). Plans were described to us for improvements in the reporting system 

to make it less punitive, although these and other proposed changes are not yet 

evident in facility records. Staff described a system where physicians have 

electronic access to current information about potential drug interactions at the 

point of care, that is, on the units, however, we saw no evidence that this 

safeguard is in place or used by physicians. It also appears that pharmacy does 

not trend or aggregate data on ADRs and share that information with physicians 

in order to improve patient care and patient outcomes. In each of these respects, 

psychopharmacology practices at Ancora substantially deviate from generally 

accepted professional standards. (Emphasis added.) 

Letter from United States Department of Justice to Governor of New Jersey (August 19, 2009), 

at 22.21

116. Medication errors — which occur all too frequently in New Jersey State 

psychiatric hospitals — endanger patients’ lives. Tragically, in 2007, constituent J.P. died four 

days after being transferred to Greystone Park Hospital from a medical hospital whose doctors 

had ordered that Greystone psychiatrists stop the administration of certain antipsychotic drugs, 

which had caused him to experience Rhabdomyolysis and Parkinsonian tremors. J.P. had 

previously been sent to the medical hospital from Greystone due to tremors, dehydration and 

increased creatine phosphokinase levels. 

 

21 Available at http://www.state.nj.us/humanservices/dmhs/oshm/aph/DoJFindingsLtrAncora_2_19Aug09.pdf. 

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117. In 2008, S.D., a patient at Ancora, almost died from Depakote toxicity and a 

possible reaction to Lithium. Further, in March 2010, Greystone patient T.B., who had been 

treated for Attention Deficit Hyperactivity Disorder, was hospitalized in a medical facility for 

lithium toxicity after being prescribed lithium and several other powerful psychotropic drugs. 

Indeed, hospital records show that overdoses, adverse reactions to medicines, and incorrect doses 

of psychotropic drugs have harmed dozens of patients at Ancora alone since 2006. At Ancora, 

from 2006 to 2008, there were at least 35 cases in which patients needed additional monitoring 

for medication mistakes, including the following:22

(a) In February 2006, a patient was mistakenly given Phenobarbital (an anticonvulsant) instead of Klonopin (an anti-anxiety medication). 

(b) In January 2007, a patient needed additional monitoring after drinking another 

patient’s lithium (a drug used to treat bipolar disorder) that was mixed with 

orange juice. 

(c) In January 2007, a patient received a dose of Oxycontin (a pain medication) at 

3:30 p.m. and again 30 minutes later because a nurse did not check to see if the 

patient had already received a dose. 

(d) In March 2007, orders for a patient were transcribed incorrectly by a nurse. 

Doses of Haldol (an antipsychotic medication), Ativan (a sedative) and Cogentin 

(an anti-Parkinson’s drug) were missed. 

(e) In May 2007, a patient was given 58 units of insulin even though the patient was 

not supposed to receive the drug. 

(f) In approximately August 2007, a patient required additional monitoring after the 

patient was given Clozapine (an antipsychotic drug), instead of Tegretol (an antiseizure drug). The pharmacy sent the wrong medicine and the nurse was 

unfamiliar with the generic names. 

(g) In January 2008, a nurse gave a patient Klonopin instead of Ativan. 

 

22 These incidents are stunningly similar to the ones reported by Judge Brotman in the Rennie litigation more than 

three decades ago. See Rennie, 476 F. Supp. at 1300-03. 

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(h) In March 2008, a patient was sent to the emergency room after becoming 

lethargic. The patient had received Haldol, Ativan and Benadryl. 

(i) June 2008, a patient was given 2.5 mg of Klonopin instead of the 1 mg dose that 

had been ordered. 

(j) In August 2008, a patient received 13 doses of another patient’s medication. 

According to Ellen Lovejoy, a spokeswoman for Defendant Department of Human Services, 

Ancora’s medication error rate was 2.4 percent in 2008, 3 percent in 2007 and 2.2 percent in 

2006.23 At Ancora, patients’ charts are frequently in disarray, and are sometimes mixed with 

those of other patients, making medication errors more likely. Moreover, as noted above (see

Section II), adverse drug reactions are more frequent in patients — like many of those in New 

Jersey psychiatric hospitals — who are subjected to polypharmacy.24

118. Indeed, since errors are self-reported, it is reasonable to assume that many other 

errors are not even documented. This conclusion is supported by a 2003 study published in the 

journal Psychiatric Services that reviewed medical charts and medication error rates for 31 

patients hospitalized for two months in a state psychiatric facility. Benjamin Grasso, et al., Use 

of Chart and Record Reviews to Detect Medication Errors in a State Psychiatric Hospital, 54 

PSYCHIATRIC SERVS. 677 (May 2003). The researchers found that hospital staff greatly 

underreport drug mistakes, including potentially deadly errors. In the study, hospital staff 

reported 9 errors per 1,448 patient days, but researchers actually found a total of 2,194 errors, of 

 

23 See Jean Mikle, Wrong Pills, Doses Cause Harm: Mixups Leave Patients at Risk, ASBURY PARK PRESS, Apr. 5, 

2009 (available at http://www.app.com/article/20090405/NEWS/90405001/Wrong-pills-doses-cause-harmMixups-leave-patients-at-risk). 

24 Medication errors are made more likely by the fact that in New Jersey State psychiatric hospitals, there are no 

educational requirements for custodial care positions (staff members who have the most patient contact). 

“Staffing at State Psychiatric Facilities,” New Jersey Department of the Public Advocate, Division of Mental 

Health Advocacy (available at http://www.state.nj.us/publicadvocate/mental/pdf/HospitalStaffingPol-3-24-09-

FINAL.pdf), at 2. In fact, at Ancora, more than 10% of the custodial direct care staff do not even have a high 

school diploma. Id. at 4. 

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which 58 percent had the potential to cause severe harm to patients. The researchers concluded 

that reported error rates are usually substantially lower than actual rates because of the flaws 

inherent in self-reporting. 

119. Additionally, New Jersey hospitals sometimes minimize medication errors, 

concluding that they cause no harm to patients if the mistake does not lead to a serious illness or 

adverse reaction. At Ancora, for example, a patient missed 58 doses of a pain medication 

because the medicine was not available. This error was considered by Ancora officials to have 

caused no harm to the patient under the hospital’s reporting standards. 

V. The Three-Step Process Disempowers and Endangers Plaintiff’s Constituents 

120. Decisions about involuntary medication of patients in New Jersey psychiatric 

hospitals are made solely by hospital staff, without any independent or impartial review. By 

allowing the involuntary medication of Plaintiff’s constituents without adequate due process 

protections, Defendants have flagrantly failed to minimize restrictions on the liberty of these 

people, as required by fundamental tenets of due process and human liberty. Defendants’ pattern 

of failures has had a profoundly negative impact on the lives of thousands of residents of this 

State. Below are examples of individuals who have been severely damaged by Defendants’ 

actions and omissions. 

A. P.D.

121. Constituent P.D. is a patient at Ancora Psychiatric Hospital, where he has been 

hospitalized since 2003, with a diagnosis of schizoaffective disorder. He was trained as a 

scientific glassblower at Salem Community College and worked making condensers and 

chemistry kits for a private company. He enjoys reading and writing, especially on spiritual, 

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theological and philosophical subjects. He also likes drawing and art, and draws portraits with 

pencil and charcoal. 

122. At Ancora, P.D. has been given a panoply of psychotropic medications, including 

the antipsychotics Risperdal, Zyprexa, Haldol and Seroquel, Depakene (a mood stabilizing drug), 

and Lexapro (an antidepressant), which have caused him to experience a number of serious side 

effects. P.D. describes taking Haldol to be like “torture,” especially when he was given the drug 

by injection. He experienced such severe akathisia (restlessness) from taking the prescribed 

medications that the skin on his legs was worn from constant pacing. Because of the 

medications, he was unable to sleep, gained an abnormal amount of weight, became depressed, 

and experienced agonizing hunger. He told staff repeatedly about these side effects, but usually 

his complaints were not addressed. 

123. The medications P.D. has been given have prevented him from doing the things 

he enjoys doing on a daily basis. For example, when he takes the medications and tries to read, 

he cannot remember what he just read. The physical effects of the medications also make it 

difficult for him to do his art work and writing. P.D. was on refusing status for a long time, but 

orally took medication to avoid getting painful intramuscular injections. When he was on 

refusing status, he always felt like he was being threatened by staff with injections of medication. 

124. P.D. was put on refusing status more than once without going through the ThreeStep Process. In fact, hospital staff never explained the Three-Step Process to him or told him 

that he can request an independent review of medication decisions. 

B. A.H.

125. Constituent A.H. was a patient at Trenton Psychiatric Hospital from January to 

April 2010, and was diagnosed with schizophrenia. She previously had attended hairdressing 

school and worked as a hairdresser for seven years and as a pharmacy technician at a hospital. 

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She was first treated for mental illness following her divorce in 2006. At Trenton Psychiatric she 

was prescribed Abilify, a powerful antipsychotic medication, and after twice refusing the 

medication she was told that if she did not take it by mouth, she would be given the medication 

by intramuscular injection. She was concerned about long-term side effects and the numbness in 

her hands and feet caused by the medication, and has problems with her vision that she did not 

have before taking the medication. She preferred a lower dose of the medication and for it to be 

administered at night so it would not make her groggy during the day. 

126. A.H. did not know about her right to speak to the Rennie Advocate at Trenton 

Psychiatric until informed by DRNJ, and no hospital staff ever advised her about the Three-Step 

Process. A.H. wanted to be advised if there were other medications that did not have potentially 

disabling side effects. She ultimately signed a consent form for the drug Abilify, but noted next 

to her signature, “I hereby consent only under the condition of threat of forced injection.” A.H. 

was also involuntarily medicated by injection with antipsychotic drugs at Monmouth Medical 

Center, a private hospital. 

C. S.L.

127. Constituent S.L. has been a patient at Hagedorn Psychiatric Hospital since 2007, 

with a diagnosis of schizoaffective disorder. He has an associate’s degree in general science 

with a particular knowledge of computer science and lived in his own apartment for over ten 

years. He enjoys reading, especially books on religion, spirituality and theology, and is paid by 

Hagedorn to play piano for other patients during mealtimes. 

128. S.L. is on Conditional Extension Pending Placement (“CEPP”) status, which 

means that he does not meet the standard for involuntary commitment and is healthy enough to 

be discharged. He remains at Hagedorn only because the hospital has not yet found a place for 

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him to live in the community. Thus, even though S.L. should not be in the hospital, he is subject 

to forced medication by hospital staff. 

129. At Hagedorn, S.L. has been given numerous psychotropic medications, including 

heavy daily doses of the antipsychotics Seroquel and Prolixin. In fact, at Hagedorn, S.L. is being 

prescribed a daily dose of 40 mg of Prolixin, even though, according to the manufacturer’s 

dosage guidelines, “controlled clinical studies have not been performed to demonstrate [the] 

safety of prolonged administration of such doses.” 25 The medications have caused him to 

experience a number of serious side effects. For example, Prolixin gives him terrible handshakes 

and tremors and causes him to have trouble reading, concentrating, and remembering things. He 

also did not like taking Seroquel as it did not help him and it made it difficult for him to sleep. 

130. S.L. has been on refusing status for almost three years but orally takes the 

medication to avoid painful intramuscular injections. At Hagedorn on one occasion, he refused 

medication and was given a very painful intramuscular injection against his will. He needed 

physical therapy and still experiences pain today from that incident. 

131. S.L. was never informed by hospital staff that he could speak with a Rennie

Advocate regarding his refusal to be medicated. In fact, Hagedorn has not even had a Rennie

Advocate for the past two years. 

D. A.R.

132. Constituent A.R. is a patient at Greystone who has been diagnosed with bipolar 

disorder and schizoaffective disorder. He is also on CEPP status, and is currently given 

Depakene (a mood stabilizing drug), Cogentin (an anti-Parkinson’s drug), Clonazepam (an anti-

 

25 See http://www.rxlist.com/prolixin-drug.htm at 2. 

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seizure medication), Inderal (an anti-tremor drug), and Seroquel (an antipsychotic drug) orally. 

He is also given a shot of Prolixin Decanoate (an antipsychotic) every fourteen days, against his 

will. When he was admitted to Greystone, the staff rushed him through the process of signing 

many forms, among which were forms indicating his consent to take certain psychotropic 

medications, without adequately explaining to him the side effects of the medication. Had he 

been informed of the painful side effects he later experienced as a result of the medication, A.R. 

would have been reluctant to give his consent. Further, despite the fact that he is currently on 

refusing status, he was never informed by hospital staff about a Rennie Advocate. 

133. The prescribed medication causes A.R. numerous side effects, including 

uncontrollable bodily movements and shaking, lethargy, bouts of depression, swollen tongue 

(which makes it difficult and painful for him to talk, eat and drink), and difficulty controlling his 

bowel movements. Greystone staff have not addressed his concerns over the painful side effects 

that he experiences. Because of these side effects, he has on occasion refused to take the 

medication, but most of the time he complies, because he is threatened by hospital staff with 

injections of Haldol if he attempts to refuse. A.R. knows this is a credible threat because 

recently he missed his morning medication due to oversleeping, and as a result he was pulled out 

of bed, roughly restrained, and injected with what he believes to have been Haldol every six 

hours for two weeks. 

E. J.C.

134. Constituent J.C. studied economics at and graduated from Princeton University, 

where he completed a thesis titled “The Dual Role and Consequent Macroeconomic Implications 

of the New York Stock Exchange Specialist System.” He later worked as a stock broker. J.C. 

has been a patient at Hagedorn and Ancora, has been given a diagnosis of chronic paranoid 

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schizoprenia, and has been prescribed powerful antipsychotic medication, including Risperdal 

and Zyprexa. 

135. J.C. has experienced severe side effects from the medication he has been given, 

including a persistent Parkinson’s-like tremor of his hands, blurred vision, pounding headaches, 

fatigue, difficulties with movement, problems with memory and concentration, and problems 

with sexual functioning. He discussed these side effects with his treating psychiatrists, but they 

did not adequately address his concerns. 

136. When J.C. was admitted to Hagedorn in November 2007, he was assessed as 

capable of giving consent. Several months later, however, his status was changed to 

“functionally incompetent,” even though he was refusing medication, in violation of A.B. 5:04.26 

A hospital psychiatrist completed only the first section of a Three-Step Form for J.C., completely 

bypassing the second and third steps of the Three-Step Process. 

137. J.C. has experienced forced injections of antipsychotic medication, which made 

him feel “like an animal.” Although he has refused medication because of the side effects, he 

has frequently taken medication by mouth to avoid painful intramuscular injections. 

138. The above examples represent only a few out of countless individuals whose 

rights have been violated and whose health has been jeopardized by Defendants’ actions. 

VI. The Three-Step Process Is Unconstitutional 

139. The Three-Step Process — as written and as applied — does not come close to 

satisfying contemporary standards of due process or equal protection. In the three decades since 

 

26 A.B. 5:04 states that the “functionally incompetent” designation applies only where: “(a) Medication is a 

necessary part of the patient’s treatment plan; and (2) The patient is unable, because of his/her illness, to give 

informed consent to the medication; and (3) The patient is not refusing the medication.” A.B. 5:04, Section 

IV.C.3(a). J.C. refused medication and thus should not have been designated as functionally incompetent. 

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the Third Circuit’s 1983 decision in Rennie, the law in this country has evolved towards 

providing greater procedural protection to individuals who are subject to forced medication. On 

the federal level, twenty years ago, the Supreme Court held that prisoners with mental illness 

may not be involuntarily medicated unless they are provided notice and a hearing. Washington 

v. Harper, 494 U.S. 210 (1990). On the state level, a majority of the U.S. population lives in 

states where patients who refuse medication are provided with legal counsel and notice and a 

judicial hearing before they may be involuntarily medicated. New Jersey has not kept pace with 

these developments. 

140. The Three-Step Process suffers from four serious constitutional deficiencies: (a) 

the lack of a judicial hearing prior to involuntary drug administration; (b) the lack of legal 

counsel; (c) the lack of reviews during the term of involuntary drug administration or time limits 

on involuntary medication orders; and (d) the lack of a requirement that the administering 

psychiatrist consider less intrusive treatments and side effects, which is an integral part of the 

exercise of professional judgment. 

141. Indeed, the United States Department of Justice recently concluded after a yearlong investigation that numerous conditions and practices at Ancora, New Jersey’s largest State 

psychiatric hospital with approximately 500 patients, violate the constitutional rights of patients. 

In particular, DOJ found that “Ancora's policies and practices subject patients to an excessive 

risk of serious harm by (1) providing inadequate systems to identify and reduce risks of harm, (2) 

providing inadequate clinical management and nursing care, (3) failing to use restraints 

appropriately, and (4) failing to provide appropriate mental health assessments and treatment.” 

Letter from United States Department of Justice to Governor of New Jersey (August 19, 2009), 

at 2 (Ex. D). 

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A. Defendants Deprive Plaintiffs’ Constituents of a Judicial Hearing Prior to the 

Involuntary Non-Emergency Administration of Psychotropic Drugs 

142. The Three-Step Process violates patients’ due process rights by denying patients 

an independent and impartial decision-maker in medication refusal decisions. In New Jersey 

State psychiatric hospitals, a treating physician, the treatment team (of which the treating 

physician is a part) and the Medical Director of the hospital (who supervises the treating 

physician) alone decide whether a person can be involuntarily medicated. None of these 

decision-makers is independent. Even prisoners — as required by Harper — are afforded a 

hearing before a decision-maker not involved in the prisoner’s treatment. 

143. By denying refusing patients judicial hearings as of right, the Three-Step Process 

violates the Due Process Clause of the Fourteenth Amendment, which guarantees civil litigants a 

fundamental right of access to the courts and a meaningful opportunity to be heard, and requires 

removal of obstacles to their full participation in judicial proceedings. See Tennessee v. Lane, 

541 U.S. 509, 532-34 (2004); Boddie v. Conn., 401 U.S. 371, 379 (1971). 

144. Moreover, the Three-Step Process fails to provide for an independent and critical 

examination of the reasons to medicate or the patient’s objections to the medication. As applied, 

the Three-Step Process is merely a one-sided exercise in coercing the patient to take medication, 

because the patient has no ability or means to challenge the psychiatrist’s diagnosis or 

medication decision. Further, there is no requirement that the psychiatrist consult with a 

patient’s pre-hospitalization psychiatrist or any other medical provider, family member, or friend 

who might have a good understanding of the patient and who might hold a view contrary to 

hospital staff regarding the use of medication or the type of medication. Additionally, the ThreeStep Process does not provide the patient with a hearing where she can question the psychiatrist 

on the need for involuntary medication, nor does it require the psychiatrist to share his 

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observations and diagnosis with the patient, nor does it provide the patient with an impartial 

decision-maker who is not part of her treatment team, or even part of the institution. 

145. By denying psychiatric patients their constitutional right to refuse unwanted 

psychotropic medication, New Jersey lags far behind other states. In stark contrast, the majority 

of Americans live in jurisdictions that provide psychiatric patients with judicial hearings before 

they can be involuntarily medicated. These states, from all regions of the country, include 

Alaska, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Idaho, Illinois, Indiana, 

Kentucky, Massachusetts, Minnesota, Mississippi, Montana, New Hampshire, New Mexico, 

New York, North Dakota, Ohio, South Carolina, South Dakota, Texas, Vermont, Virginia, 

Washington, West Virginia, Wisconsin, and Wyoming. See ALASKA STAT. § 47.30.839 (2004); 

CAL. WELF. & INST. CODE § 5332 (2001); Riese v. St. Mary’s Hosp. & Med. Ctr., 271 Cal. Rptr. 

199, 211 (Cal. Dist. Ct. App. 1987); People v. Medina, 705 P.2d 961, 963 (Colo. 1985) (en 

banc); CONN. GEN. STAT. ANN. § 17a-543 (2007); Del. Psychiatric Center Policy and Procedure 

Directive TX 24 (Sept. 27, 2007); FLA. STAT. ANN. § 394.467 (2009); HAW. REV. STAT. § 334E -

2 (1984); IDAHO CODE ANN. § 66-322 (1981); 405 ILL. COMP. STAT. 5/2-107.1 (2007); In re 

Mental Commitment of M.P., 510 N.E.2d 645, 647 (Ind. 1987); KY. REV. STAT. ANN. § 202A.196

(1988); MASS. GEN. LAWS ch. 123 § 8B (1992); MINN. STAT. ANN. § 253B.92 (1998); MISS.

CODE ANN. § 41-21-73 (2004); Miss. Op. Atty. Gen. No. 94-0068, Zachary, March 2, 1994; 

MONT. CODE. ANN. § 53-21-127 (2003); N.H. REV. STAT. ANN. § 135-C:45-a (2006); N.M.

STAT. ANN. § 43-1-15 (2009); N.Y. COMP. CODES R. & REGS. tit. 14, § 527.8 (2008); N.D. CENT.

CODE. §25-03.1-18.1 (2003); Steele v. Hamilton County Cmty. Mental Health Bd., 736 N.E.2d 

10, 21 (Ohio 2000); S.C. CODE ANN. § 44-66-30 (1992); S.D. CODIFIED LAWS § 27A-12-3.12 

(1996); TEX. HEALTH & SAFETY CODE ANN. § 574.103 (2003); VT. STAT. ANN. TIT. 18 § 7624 

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(2007); VA. CODE ANN. §37.2-1101 (2009); WASH. REV. CODE § 71.05.215 (1991) (requiring 

court order for medication if commitment is extended); W. Va. Code Ann. § 27-5-11 (2005) 

(requiring court order in four of six judicial circuits); WIS. STAT. § 51.61 (2010); WYO. STAT.

ANN. §25-10-110 (2008). These 29 states account for 64% of the U.S. population. Additionally, 

Maine, Maryland, Nebraska, Oregon, and Tennessee require administrative hearings, with input 

from impartial decision-makers, before involuntary patients can be forcibly medicated. See ME.

REV. STAT. ANN. tit. 34-B, § 3861(3) (2001); MD. HEALTH-GEN. CODE ANN. § 10-708 (2005); 

NEB. REV. STAT. § 71-959 (1976); OR. ADMIN. R. 309-033-0640(3) (2010); and TENN. COMP. R.

& REGS. 0940-01-01-.08 (1985). These additional five states account for 6% of the U.S. 

population. Thus, 70% of the people in this country live in states that provide greater due 

process for patients in psychiatric hospitals than does New Jersey.27

146. New Jersey, in failing to provide for judicial hearings for those who oppose 

involuntary drugging, trails far behind other states. In New York, for example, when a patient 

refuses to consent to the administration of antipsychotic drugs on a non-emergency basis, there 

must be a judicial determination of whether the patient has the capacity to make a reasoned 

decision with respect to proposed treatment before drugs may be administered over objection. 

The patient must be afforded representation by counsel at the hearing (with counsel appointed 

for the indigent), and the patient can be involuntarily medicated only if the state demonstrates by 

clear and convincing evidence the patient’s incapacity to make a treatment decision and that the 

proposed treatment is narrowly tailored to give substantive effect to the patient’s liberty interest, 

 

27 Utah has in-hospital medication review hearings, which still offer greater due process than New Jersey’s ThreeStep Process. See Utah State Hospital Operational Policy and Procedure Manual, at 16-23, available at 

http://www.ush.utah.gov/pdf/USHOPP%20-%20Special%20Tx%20Procedures.pdf. 

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taking into consideration all relevant circumstances, including the patient’s best interests, the 

benefits to be gained from the treatment, the adverse side effects associated with the treatment, 

and any less intrusive alternative treatments. See Rivers v. Katz, 67 N.Y.2d 485, 497 (N.Y. 

1986). 

147. In Connecticut, a psychiatric patient can be involuntarily medicated only when: 

(1) a mental health professional not employed by the facility and jointly appointed by the 

patient’s advocate and the facility decides that the patient needs medication; (2) the Probate 

Court finds by clear and convincing evidence that the patient is incapable of giving informed 

consent to medication for the treatment of his psychiatric disability and appoints a conservator; 

or (3) the Probate Court finds that by clear and convincing evidence that (i) the patient is capable 

of giving informed consent but refuses to consent to medication for treatment of the patient’s 

psychiatric disabilities, (ii) there is no less intrusive beneficial treatment, and (iii) without 

medication, the psychiatric disabilities with which the patient has been diagnosed will continue 

unabated and place the patient or others in direct threat of harm. See CONN. GEN. STAT. ANN. § 

17a-543. 

148. In other jurisdictions such as Texas, absent an emergency, an involuntary patient 

may not be forcibly medicated without a court order. TEX HEALTH & SAFETY CODE ANN. § 

574.103(b). There must be a hearing, with counsel, in order to determine whether clear and 

convincing evidence shows that the patient is incapable of making a decision regarding 

medication and whether treatment with the proposed medication is in the patient’s best interest. 

Id. § 574.105-574.106. The patient is also entitled to request an independent expert to testify on 

her behalf. Id. § 574.105(6). Many other states have provisions similar to New York, 

Connecticut and Texas. 

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B. Defendants Deprive Plaintiffs’ Constituents of Legal Counsel Prior to the 

Involuntary Non-Emergency Administration of Psychotropic Drugs 

149. The Three-Step Process does not provide for anyone to support the desires of the 

patient regarding medication, and does not furnish the patient with an attorney to bring a 

challenge in court in the event that she wishes to contest treatment over objection. Further, the 

Rennie Advocate’s position in the hospital’s chain of command deprives the patient of a truly 

independent advocate, because the Rennie Advocate works for the hospital and is not required to 

advocate for the expressed desire of the patient. The inadequacy of the Rennie Advocates is also 

shown by the fact that virtually no independent psychiatric reviews have been conducted during 

the last decade. In reality, the Three-Step Process is frequently completed and medication 

administered forcibly, before the Rennie Advocate even receives the paperwork, much less meets 

with the patient. 

150. Without a court-appointed lawyer, a New Jersey psychiatric patient has no ability 

to exercise her right to refuse medication. As one court put it: 

The average patient residing in a mental institution is not capable of mastering the 

changing legal standards and developments in mental health law and evaluating 

how these changes might affect his or her rights. The effects of confinement, 

particularly the debilitating effects of the drugs routinely administered at mental 

institutions, present tremendous obstacles which limit the patients’ abilities to 

utilize [] review procedures and assert his or her rights. 

Streicher v. Prescott, 663 F. Supp. 335, 343 (D.D.C. 1987). 

151. Not only do Plaintiff’s constituents lack access to lawyers or real advocates prior 

to being involuntarily drugged, they — unlike inmates in New Jersey prisons — have no access 

to law libraries or legal materials to challenge medication decisions on their own. See Section 

IV.A above. The Supreme Court has affirmed the obligation of correctional officials to provide 

prison inmates with access to the courts either by providing a law library, a law clerk or a legal 

services agency to insure that prison inmates can protect their rights. See Lewis v. Casey, 518 

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U.S. 343 (1996). Psychiatric patients have the same rights. See Ward v. Cort, 762 F. 2d 856, 

859 (10th Cir. 1985) (psychiatric patient had right to meaningful access to court, which state 

hospital violated by not providing any law library facilities and by providing legal services 

through private law firm that were inadequate). 

152. The states that require a judicial decision-maker for involuntary medication 

decisions also typically provide psychiatric patients with legal representation in those hearings. 

Most commonly, as in Texas for example, state statutes require that counsel be appointed for 

indigent patients. See, e.g., TEX. HEALTH & SAFETY CODE ANN. § 574.105. In New York, 

patients are represented in medication refusal hearings by attorneys from the Mental Hygiene 

Legal Service, which also represents patients in commitment hearings. Critically, these attorneys 

must advocate for their clients’ desires, unlike the Rennie Advocates presently employed in New 

Jersey hospitals, who typically side with their hospital colleagues. 

153. New Jersey psychiatric patients — including Plaintiff’s constituents — have an 

absolute right to counsel in civil commitment proceedings. See N.J. Ct. R. 4:74-7. Yet, the vast 

majority of people committed to New Jersey psychiatric hospitals are indigent and require 

appointed counsel. Lawyers from the New Jersey Division of Mental Health Advocacy 

(“DMHA”), part of the New Jersey Public Advocate’s office, represent these patients in 

commitment hearings and are statutorily authorized to — and should — represent these same 

patients in medication refusal hearings. These attorneys have not done so, however, because the 

Three-Step Process does not provide for hearings and thus there are no hearings for DMHA 

attorneys to attend. 

154. Patients are entitled to legal representation and a judicial hearing before they can 

be involuntarily committed to a psychiatric hospital, and there is no reason why the State cannot 

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provide legal representation and a judicial hearing before involuntarily medicating a patient with 

psychotropic medication. 

155. In order for the right to refuse medication to have any meaning, patients who 

object to medication must be provided competent lawyers who have specialized training in 

psychiatric and medication practices. Minimal standards of competence require that these 

lawyers interview their clients before hearings, thoroughly investigate the facts, and be present 

during any court-ordered mental health examination of their client. See In the Matter of the 

Mental Health of K.G.F., 29 P.3d 485 (Mont. 2001). 

C. Defendants Deprive Plaintiffs’ Constituents of Meaningful Review of the 

Involuntary Non-Emergency Administration of Psychotropic Drugs 

156. It is well settled that New Jersey psychiatric hospitals have a constitutional 

obligation to provide an independent and impartial review of an involuntary medication decision. 

See Brandt, 626 F. Supp.2d at 491-92. Yet the Three-Step Process does not include any 

independent or impartial review. Further, once a patient goes through the Three-Step Process, 

she can be forcibly medicated indefinitely and the dosage and type of medication can be changed 

without any due process. Moreover, there are no standards governing the duration, or dosage, of 

the medication. There is not even a requirement that the dosage meet Food and Drug 

Administration guidelines, nor is there any requirement that medication cease after any 

medically recognized standard of time that would indicate whether or not the medication was 

effective. After a patient undergoes the Three-Step Process, the authority to forcibly medicate 

her lasts as long as the patient is in the hospital, which could be years or decades, because many 

patients in state psychiatric hospitals are long-term patients. 

157. Further, in New Jersey, patients face a stiff penalty for exercising their 

constitutional rights. Those brave enough to assert their right to refuse medication are typically 

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forced to stay in the hospital longer, perhaps indefinitely, because a patient’s refusal of 

medication is often used by staff to justify involuntary commitment. 

158. Contemporary standards of due process, as followed by other states, require 

meaningful periodic review of medication decisions and the setting of precise time limits on 

involuntary medication. In Connecticut, for example, if the Court appoints a conservator for an 

incompetent patient or orders medication of a patient who is capable of consent, the authority to 

consent for the patient may last for a maximum of one hundred twenty days. CONN. GEN. STAT.

ANN. § 17a-543. In Illinois, the court’s involuntary medication order expires after ninety days 

and may be renewed only after a new judicial hearing. 405 ILL. COMP. STAT. 5/2-107.1(a-5)(5). 

D. Defendants Fail to Exercise Professional Judgment in Medication Practices 

159. The Due Process Clause of the Fourteenth Amendment requires, at a minimum, 

that psychiatrists employed by the State exercise professional judgment in medication decisions. 

Youngberg, 457 U.S. at 324. But the professional judgment standard does not require carte 

blanche deference to psychiatrists’ decisions. See Brandt, 626 F. Supp.2d at 476 (citing Rennie 

v. Klein, 720 F.2d at 270 n.8). On the contrary, “[m]edical authorities may administer treatment 

only as ‘necessary to prevent the patient from endangering himself or others,’ and the exercise of 

professional judgment may require them to consider available alternatives in the context of such 

factors as the harmful side-effects that a patient may experience.” Brandt, 626 F. Supp.2d at 476 

(quoting Rennie v. Klein, 720 F.2d at 269-70). 

160. In New Jersey, lack of professional judgment is shown by the fact that psychiatric 

hospitals administer excessive dosages of psychotropic medications, engage in the unjustified 

use of polypharmacy, and routinely exclude patients from participating in decisions regarding 

their own treatment. In fact, the Three-Step Process is sometimes completed without the 

psychiatrist or the treatment team engaging in any meaningful discussion with the patient. 

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Indeed, patients who refuse psychiatric medication often do so for very good reasons: they know 

that the medication being offered does not help them, they are prescribed the wrong medication, 

they want a lower dosage, they want a different medication (one that has worked for them 

successfully in the past), or they are seeking to avoid painful side effects. 

161. Under the Three-Step Process, the involuntary administration of medication is not 

primarily guided by the clinical interests of the patient, the safety of the patient or others, or the 

preferences of the patient in avoiding unwanted side effects. Instead, the very terms of A.B. 5:04 

state that expediency can trump patients’ rights, as forced medication can be justified by the 

belief of hospital staff that “a treatment plan which includes medication would probably improve 

the patient’s condition within a significantly shorter time period” than one that does not include 

medication. A.B. 5:04, Section II.B.2(a). 

162. An individual’s constitutional rights may not be taken away, however, for the 

convenience of staff or based on a psychiatrist’s belief that a patient’s treatment might proceed 

faster were the patient involuntarily medicated. In Brandt, the Court held that “medical 

authorities may medicate involuntarily committed patients against their will only in an imminent 

or reasonably impending emergency.” Brandt, 626 F. Supp.2d at 489. 

163. Under the Three-Step Process, psychiatrists are not required to consider less 

intrusive treatment measures, such as a lower dosage of medication, different medication, or no 

medication at all. The fact that psychiatrists are not obligated by the State to even consider 

utilizing less intrusive means or side effects in deciding whether or not to override a person’s 

desire to refuse medication violates patients’ due process rights. See Sell, 539 U.S. at 179-80. 

VII. Providing Due Process Will Benefit Patients’ Treatment 

164. Not only is the right to refuse medication a fundamental due process right, it is in 

the State’s interest to have each patient embrace the treatment that is offered. A patient who fails 

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to invest himself in her own recovery will not recover, and coercion without legal recourse is not 

likely to promote recovery. All too frequently, patients become noncompliant with medication 

once they are discharged from the hospital because there is no one to force them to take it, and 

they subsequently return to the hospital. On the other hand, if a patient participates in treatment 

decisions and is not coerced into taking medication, she may be more likely to continue to adhere 

to her treatment plan after discharge from the hospital. 

165. Giving patients choices by honoring their constitutional right to refuse treatment 

can have important beneficial effects on long-term treatment and honor their human dignity. 

Choice in matters of treatment works better than coercion because self-determination promotes 

commitment, intrinsic motivation, satisfaction, and effective functioning. Bruce Winick, The 

MacArthur Treatment Competence Study: Legal and Therapeutic Implications, 2 PSYCHOL. PUB.

POL’Y & L. 137, 158-61 (1996). Indeed, even the American Psychiatric Association recognizes 

that the judicial review procedure followed by many states may add strength and dignity to the 

involuntarily committed patient’s liberty interests in refusing administration of 

unwanted medication, may provide specific criteria upon which to base the decision to 

administer medication over the patient’s objection, and may encourage further discussions 

between the psychiatrist and patient.28

166. Clinical research conducted over the last three decades has shown that providing 

psychiatric patients with more choice — and using less coercive measures — in medication 

decisions promotes treatment goals. For example, a study published in Psychiatry Research in 

June 2010 concluded that patients who participated in medication decisions had lower illness 

 

28 See http://archive.psych.org/edu/other_res/lib_archives/archives/199110.pdf. 

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severity, better therapeutic alliance ratings, more positive attitudes towards treatment and better 

insight into their illness. Johannes Hamann et al., Patient Participation in Antipsychotic Drug 

Choice Decisions, 178 PSYCHIATRY RES. 63 (June 2010). Further, a study published in the 

journal Psychiatric Services in March 2010 concluded that patients who reported that they 

experienced less coercion (including forced medication) were more satisfied with their treatment, 

and thus less at risk of involuntary readmissions. Christine Katsakou, et al., Coercion and 

Treatment Satisfaction Among Involuntary Patients, 61 PSYCHIATRIC SERVS. 286 (March 2010). 

Additionally, a study published in 1999 in Psychiatric Services concluded that patient 

satisfaction with treatment was correlated with fewer readmissions and fewer days readmitted. 

Benjamin Druss, Robert Rosenheck and Marilyn Stolar, Patient Satisfaction and Administrative 

Measures as Indicators of the Quality of Mental Health Care, 50 PSYCHIATRIC SERVS. 1053, 

1056 (August 1999).

167. Moreover, a study published in the International Journal of Law and Psychiatry

in 1997 concluded that coercive treatment arouses negative feelings in patients, creates negative 

expectations about the outcome of the treatment, fails to result in a trusting treatment 

relationship between the patient and medical professionals, and is related to worse treatment 

outcomes. Riittakerttu Kaltiala-Heino, Pekka Laippala and Raimo Salokangas, Impact of 

Coercion on Treatment Outcome, 20 Int’l J. Law & Psychiatry 311 (Summer 1997). 

Additionally, a study published in the American Journal of Psychiatry in 1991 concluded that, 

for state hospital patients, involuntary medication does not appear to enhance insight or 

cooperation or result in rapid return to the community. Francine Cournos, Karen McKinnon and 

Barbara Stanley, Outcome of Involuntary Medication in A State Hospital System, 148 AM. J.

PSYCHIATRY 489 (April 1991). Finally, Dr. Paul Appelbaum observed that research on coercion 

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in psychiatric treatment has shown that “[t]o the extent that subjects felt they had a voice in the 

process, they felt less coerced,” and that a decrease in the use of coercive practices is associated 

with an improvement in the accuracy of diagnosis, and an increase in adherence to treatment. 

Paul Appelbaum, Commentary, in MOVING FROM COERCION TO COLLABORATION IN MENTAL 

HEALTH SERVICES (David Pollack ed., 2004).29

168. Research has also shown that providing judicial hearings can have therapeutic 

benefits for patients. A study published in the journal Hospital and Community Psychiatry in 

1988, two years after New York instituted judicial oversight of medication refusal hearings, 

concluded that the hearings did not delay treatment in a large state hospital, and that judicial 

review promoted a better understanding by clinicians of the legal basis for involuntary 

medication and greater patient participation in the review procedure. Francine Cournos, Karen 

McKinnon and Carole Adams, A Comparison of Clinical and Judicial Procedures for Reviewing 

Requests for Involuntary Medication in New York, 39 HOSP. & CMTY. PSYCHIATRY 851, 855 

(Aug. 1988).

169. Another study showed that medication refusers, once discharged from the 

hospital, spent longer outside the hospital before being readmitted than those who did not refuse 

medication. The refusers’ success may have been result of a “healthy skepticism” that they 

retained “about doctors, medicine and psychiatry and some sense of themselves as not without 

power and control over their lives.” Irwin Hassenfeld and Barbara Grumet, A Study of the Right 

to Refuse Treatment, 12 BULL. AM. ACAD. PSYCHIATRY & L. 65, 72 (1984). 

 

29 Available at http://mentalhealth.samhsa.gov/publications/allpubs/sma04-3869/Commentary.asp. 

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170. Giving effect to the right to refuse treatment also ensures that medication is not 

being administered as a means of punishment or convenience, and improved protection from the 

administration of inappropriate medications or dosages causing severe side effects. Indeed, a 

study of long-term psychiatric patients found that “capable patient involvement is an important 

check on a physician’s judgment.” Steven Hoge & Thomas Feucht-Haviar, Long-Term, 

Assenting Patients: Decisional Capacity and the Quality of Care, 23 BULL. AM. ACAD.

PSYCHIATRY & L. 343, 349 (1995). Another study found that having right-to-refuse hearings and 

making patients aware of their right to refuse treatment is “undoubtedly beneficial, considering 

the long-standing belief that an active role in the therapeutic alliance between patient and 

therapist will be worthwhile.” Julie Zito et al., The Treatment Review Panel: A Solution to 

Treatment Refusal?, 12 BULL. AM. ACAD. PSYCHIATRY & L. 349, 357 (1984). 

171. Moreover, experience from New Jersey’s own past practices shows that external 

review of forced medication decisions protects patients and results in better treatment, whereas 

the Three-Step Process does not. As the New Jersey Public Advocate argued to the Supreme 

Court twenty years ago: 

In New Jersey a system of internal peer review . . . has proven ineffective in 

ensuring that medication refusals are carefully reviewed. . . . [E]xternal review of 

medication refusals resulted in the total discontinuation or the reduction of 

medication in 59% of the cases where state hospital patients refused prescribed 

anti-psychotic medication. In stark contrast, purely internal peer review resulted 

in a total discontinuation or a reduction of dosage in a mere 2.47% of the refusal 

cases. Thus, only external review reduces the risk of harm and the risk of error to 

constitutionally acceptable levels. External review is not unduly costly or 

burdensome, does not disrupt institutional order and results in improved quality of 

care and treatment. 

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Brief for the New Jersey Department of the Public Advocate as Amicus Curiae in Support of 

Respondent at 6, Washington v. Harper, 494 U.S. 210 (1990) (No. 88-599).30 The Public 

Advocate’s conclusions have continued relevance today. 

172. Finally, providing medication refusal hearings might ultimately be more costeffective for the State because there could be a savings on unnecessary medication. See Brandt, 

626 F. Supp.2d at 487. 

COUNT I 

(Against All Defendants) 

Violations of the Due Process Clause of the Fourteenth Amendment of the United States 

Constitution 

173. Plaintiff repeats and realleges each Paragraph of this Complaint as if set forth at 

length herein. 

174. Defendant Department of Human Services operates and funds State and County 

hospitals that allow the forcible, non-emergency medication of psychiatric patients pursuant to 

the Three-Step Process. 

175. Defendant DHSS licenses hospitals that allow the forcible, non-emergency 

medication of psychiatric patients pursuant to the Three-Step Process. 

176. Defendants’ actions and omissions, as described in this Complaint, are carried out 

under the color and pretense of New Jersey state law. 

 

30 In ruling that a peer review system similar to the Three-Step Process was unconstitutional, the Supreme Court in 

Harper cited to the Public Advocate’s brief, noting that “New Jersey’s review of involuntary psychotropic 

medication in mental institutions is instructive.” Harper, 494 U.S. at 251 n.22. 

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177. Defendants’ actions and omissions violate the rights of Plaintiff’s constituents, 

guaranteed by the Due Process Clause of the Fourteenth Amendment of the United States 

Constitution. Such rights are enforceable under 42 U.S.C. § 1983 (1996). 

178. Such violations include, but are not limited to, the denial of constituents’ rights to 

refuse psychotropic medication, to freedom from unwanted bodily intrusions, to due process in 

medication decisions, and to be treated by clinicians exercising professional judgment. 

179. Defendants fail to comply with the regulations set forth in the Three-Step Process 

by, inter alia, failing to notify patients of their right to refuse medication and the existence of a 

Rennie Advocate and by not actually completing each of the three steps for each patient who 

refuses medication. Even were Defendants to comply fully with the written requirements of the 

Three-Step Process, constituents’ due process rights would not be adequately protected. 

180. The Three-Step Process violates contemporary standards of due process because: 

(a) it allows the forcible medication of patients who are competent to make medical 

decisions; 

(b) it allows the forcible medication of patients without a finding that the patients 

would pose a danger to themselves or others without medication; 

(c) there is no legal representation provided to the patient; 

(d) there is no truly independent psychiatric examination of patients who refuse 

medication; 

(e) there is no notice provided to the patient; 

(f) there is no right to confrontation; 

(g) there is no decision by an impartial decision-maker who is independent of the 

hospital and Defendants’ supervision; 

(h) there is no limit to the length of time a patient can be forcibly medicated; 

(i) there is no requirement limiting the type or dosage of medication with which a 

patient can be forcibly drugged; 

(j) there is no meaningful review of involuntary medication decisions; and 

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(k) patients have no realistic means of appealing involuntary medication decisions. 

181. In addition, Defendants have violated constituents’ due process rights by failing to 

exercise professional judgment in their treatment of constituents, as evidenced by institutions’ 

medication errors and psychiatrists’ failure to consider utilizing less restrictive means of 

treatment and reasons why patients might refuse medication, including concerns regarding 

debilitating side effects. 

182. Further, Defendants retaliate against patients who exercise their right to refuse 

medication by subjecting them to longer hospital commitments than patients who do not refuse 

medication. 

COUNT II

(Against All Defendants) 

Violations of the Right of Access to the Courts 

183. Plaintiff repeats and realleges each Paragraph of this Complaint, and each 

Paragraph of Count I above, as if set forth at length herein. 

184. Defendant Department of Human Services operates and funds State and County 

hospitals that allow the forcible, non-emergency medication of psychiatric patients without 

providing those patients judicial hearings. 

185. Defendant DHSS licenses hospitals that allow the forcible, non-emergency 

medication of psychiatric patients without providing those patients judicial hearings. 

186. Defendants’ actions and omissions, as described in this Complaint, are carried out 

under the color and pretense of New Jersey state law. 

187. All persons enjoy a constitutional right of access to the courts under the Sixth 

Amendment and the Due Process Clause of the Fourteenth Amendment. 

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188. The right of access to the courts for psychiatric patients challenging the conditions 

of their confinement includes physical access to a courtroom and judge as well as access to an 

adequate law library. These rights are enforceable under 42 U.S.C. § 1983. 

189. Defendants’ actions and omissions violate Plaintiff’s constituents’ constitutional 

right of access to the courts because Plaintiff’s constituents lack access to judicial hearings prior 

to the involuntary non-emergency administration of psychotropic medication and — unlike 

inmates in New Jersey prisons — have no access to law libraries or legal materials to challenge 

medication decisions on their own. 

COUNT III

(Against All Defendants) 

Violations of the Right to Counsel 

190. Plaintiff repeats and realleges each Paragraph of this Complaint, and each 

Paragraph of Counts I-II above, as if set forth at length herein. 

191. Defendant Department of Human Services operates and funds State and County 

hospitals that allow the forcible, non-emergency medication of psychiatric patients without 

providing those patients legal counsel. 

192. Defendant DHSS licenses hospitals that allow the forcible, non-emergency 

medication of psychiatric patients without providing those patients legal counsel. 

193. Defendants’ actions and omissions, as described in this Complaint, are carried out 

under the color and pretense of New Jersey state law. 

194. The overwhelming majority of patients in New Jersey State psychiatric hospitals 

are indigent and thus lack the resources to retain their own counsel. 

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195. All persons challenging the conditions of their confinement enjoy a constitutional 

right to legal counsel under the Sixth Amendment and the Due Process Clause of the Fourteenth 

Amendment. This right is enforceable under 42 U.S.C. § 1983. 

196. Defendants’ actions and omissions violate Plaintiff’s constituents’ constitutional 

right to counsel because Plaintiff’s constituents lack access to legal counsel prior to the 

involuntary non-emergency administration of psychotropic medication. 

COUNT IV

(Against All Defendants) 

Violations of the Equal Protection Clause of the Fourteenth Amendment of the United 

States Constitution 

197. Plaintiff repeats and realleges each Paragraph of this Complaint, and each 

Paragraph of Counts I-III above, as if set forth at length herein. 

198. Defendant Department of Human Services operates and funds State and County 

hospitals that allow the forcible, non-emergency medication of psychiatric patients without 

providing those patients a fair hearing. 

199. Defendant DHSS licenses hospitals that allow the forcible, non-emergency 

medication of psychiatric patients without providing those patients a fair hearing. 

200. Defendants’ actions and omissions, as described in this Complaint, are carried out 

under the color and pretense of New Jersey state law. 

201. The Equal Protection Clause of the Fourteenth Amendment requires that the 

government treat all similarly situated people alike. Violations of the Equal Protection Clause 

are actionable under 42 U.S.C. § 1983. 

202. Defendants have treated Plaintiff’s constituents — individuals in psychiatric 

hospitals diagnosed with a mental illness — differently than people with medical conditions, 

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prison inmates with mental illness, and individuals who have a developmental disability as well 

as a mental illness. For example, Plaintiff’s constituents, unlike the three other similarly situated 

groups, are not provided hearings before being forcibly medicated and are entitled to at least as 

many rights as these groups. 

203. Defendants intentionally created a system in which Plaintiff’s constituents are 

given fewer rights than people with medical conditions, prison inmates with mental illness, and 

individuals who have a developmental disability as well as a mental illness. 

204. Defendant Department of Human Services operates both developmental centers 

and psychiatric hospitals but only individuals in developmental centers receive court hearings 

before they may be involuntarily medicated with psychotropic drugs. 

205. There is no rational basis for Defendants’ unequal treatment of patients in 

psychiatric hospitals, people with medical conditions, prison inmates with mental illness, and 

individuals who have a developmental disability as well as a mental illness. Involuntary 

medication implicates the same constitutional concerns for individuals in each group, and any 

state interest in forced medication is the same for individuals in each group. 

COUNT V 

(Against All Defendants) 

Violations of the First Amendment 

206. Plaintiff repeats and realleges each Paragraph of this Complaint, and each 

Paragraph of Count I-IV above, as if set forth at length herein. 

207. The First Amendment’s protection of free speech also protects freedom of 

thought. 

208. By forcing individuals to take mind-altering drugs against their will, Defendants 

forcibly change the ability of such individuals to formulate particular thoughts. The involuntary 

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administration of psychotropic drugs affects patients’ mental processes, interfering with their 

freedom of thought. 

209. Any infringement on a fundamental right such as the freedom of thought must be 

narrowly tailored to serve a compelling government interest. New Jersey’s forced medication 

practices are not narrowly tailored and do not serve any compelling government interest. 

COUNT VI

(Against All Defendants) 

Violations of the Americans with Disabilities Act 

210. Plaintiff repeats and realleges each Paragraph of this Complaint, and each 

Paragraph of Counts I-V above, as if set forth at length herein. 

211. Defendant Department of Human Services operates and funds State and County 

hospitals that allow the forcible, non-emergency medication of psychiatric patients without 

providing those patients legal counsel and judicial hearings. The Department of Human Services 

also operates developmental centers for individuals with developmental disabilities, who may not 

be involuntarily medicated with psychotropic drugs without a judicial hearing. Psychiatric 

patients are denied the right to a judicial hearing based solely on their disability. 

212. Defendant DHSS licenses hospitals that allow the forcible, non-emergency 

medication of psychiatric patients without providing those patients legal counsel and judicial 

hearings. DHSS also licenses hospitals where medical patients may not be involuntarily treated 

without a judicial hearing. 

213. Title II of the ADA prohibits discrimination against people with disabilities by 

“public entities.” For the purposes of Title II of the ADA, “the term ‘public entity’ means (A) 

any state or local government; [or] (B) any department, agency, special purpose district, or other 

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instrumentality of a State or States or local government . . . .” 42 U.S.C. § 12131(1)(A) & (B) 

(1990). 

214. Defendants are state actors who either operate State hospitals or provide the 

licensing for public hospitals, both of which are activities that constitute public entities of a State 

within the meaning of 42 U.S.C. § 12131(1)(A) & (B). 

215. Plaintiff’s constituents have mental disabilities within the meaning of 42 U.S.C. § 

12102(2) (2008) and are qualified individuals with disabilities within the meaning of 42 U.S.C. § 

12131(2). 

216. Title II of the ADA provides that: 

[N]o qualified individual with a disability shall, by reason of such 

disability, be excluded from participation in or be denied the benefits of 

the services, programs, or activities of a public entity, or be subjected to 

discrimination by any such entity. 

42 U.S.C. § 12132 (1990); see also 28 C.F.R. § 35.101 et seq. (1991). 

217. Further, as public entities, Defendants may not: 

(ii) Afford a qualified individual with a disability an opportunity to 

participate in or benefit from the aid, benefit, or service that is not equal to 

that afforded others; 

(iii) Provide a qualified individual with a disability with an aid, benefit, or 

service that is not as effective in affording equal opportunity to obtain the 

same result, to gain the same benefit, or to reach the same level of 

achievement as that provided others; [or] 

(vii) Otherwise limit a qualified individual with a disability in the 

enjoyment of any right, privilege, advantage, or opportunity enjoyed by 

others receiving the aid, benefit, or service. 

28 C.F.R. § 35.130(b)(ii), (iii), & (vii) (2010). 

218. Defendants, by their actions and omissions complained of herein, have violated 

and continue to violate Plaintiff’s constituents’ rights, secured by Title II of the ADA, 42 U.S.C. 

§ 12132, and the regulations promulgated thereto, 28 C.F.R. Pt. 35, and 28 C.F.R. Pt. 36, App. 

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A, by, inter alia, denying constituents their right to participate in treatment, to refuse unwanted 

psychotropic drugs, and to judicial process and legal counsel. 

219. Further, in New Jersey, people who have been diagnosed with a mental illness are 

deprived of the right to give or withhold informed consent, whereas individuals with other 

diagnoses are accorded the right to give or withhold informed consent for treatment. For 

example, a diabetic who refuses an amputation is provided a hearing before such a procedure can 

occur and a person with a communicable disease gets a hearing before she can be quarantined. 

The fact that the State has singled out people with mental illness as unworthy of due process 

constitutes discrimination based on disability. 

COUNT VII

(Against All Defendants) 

Violations of the Rehabilitation Act 

220. Plaintiff repeats and realleges each Paragraph of this Complaint, and each 

Paragraph of Counts I-VI above, as if set forth at length herein. 

221. Section 504 of the Rehabilitation Act of 1973 provides, “[n]o otherwise qualified 

individual with a disability in the United States, as defined in section 705(20) of this title, shall, 

solely by reason of her or his disability, be excluded from the participation in, be denied the 

benefits of, or be subjected to discrimination under any program or activity receiving Federal 

financial assistance . . ..” 29 U.S.C. § 794(a) (2002). 

222. A “program or activity” is defined, in pertinent part, as “a department, agency, 

special purpose district, or other instrumentality of a State or of a local government; or the entity 

of such State or local government that distributes such assistance and each such department or 

agency (and each other . . . local government entity) to which the assistance is extended, in the 

case of assistance to a State or local government;. . . [or] an entire corporation, partnership, or 

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other private organization...which is principally engaged in the business of providing...health 

care.” 29 U.S.C. §§ 794(b)(1)(A), 794(b)(1)(B), & 794(b)(3)(A)(ii). 

223. Defendants are “program[s] or activit[ies]” as defined by 29 U.S.C. § 794(b)(1). 

224. Plaintiff’s constituents have mental disabilities within the meaning of 29 U.S.C. § 

705(20) (2008). 

225. Defendants, by their actions and omissions complained of herein, have violated 

and continue to violate the rights of all constituents secured by the Rehabilitation Act, 29 U.S.C. 

§ 794 and the regulations promulgated thereto, 28 C.F.R. Pt. 41 and 45 C.F.R. Pt. 84, by limiting 

and continuing to limit their enjoyment in the rights, privileges, advantages, and opportunities 

that are enjoyed by other recipients of public programs when receiving aid, benefit, or service. 

Such violations include, but are not limited to, the failure to allow Plaintiff’s constituents to 

exercise their rights to participate in treatment, to refuse unwanted psychotropic drugs, and to 

judicial process and legal counsel. 

RELIEF REQUESTED 

WHEREFORE, Plaintiff, Disability Rights New Jersey, respectfully requests the following 

relief: 

1. Adjudge and declare that Defendants’ actions and omissions, as described herein, 

violate Plaintiff’s constituents’ rights under the Due Process and Equal Protection Clauses of the 

Fourteenth Amendment of the United States Constitution, Plaintiff’s constituents’ right of access 

to the courts and right to counsel under the Sixth Amendment and the Due Process Clause of the 

Fourteenth Amendment, and Plaintiff’s constituents’ right to freedom of thought under the First 

Amendment; 

2. Adjudge and declare that Defendants’ actions and omissions, as described herein, 

violate Plaintiff’s constituents’ rights under Title II of the Americans with Disabilities Act, 42 

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U.S.C. § 12101, et seq., the Rehabilitation Act, 29 U.S.C. § 794, and the regulations promulgated 

thereto; 

3. Issue a permanent injunction requiring that Defendant Velez prohibit the nonemergency, involuntary administration of psychotropic medication in State and county 

psychiatric hospitals without court order, and only allow medication to be administered in the 

manner required by the Due Process and Equal Protection Clauses of the United States 

Constitution; 

4. Issue a permanent injunction requiring that Defendant Alaigh prohibit the licensing of 

hospitals that allow the administration of non-emergency, involuntary administration of 

psychotropic medication without court order, and only allow medication to be administered in 

those hospitals in the manner required by the Due Process and Equal Protection Clauses of the 

United States Constitution; 

5. Issue a permanent injunction requiring Defendants to provide Plaintiff’s constituents 

with the appropriate professional judgment when attending to the treatment of these individuals, 

as required under the Due Process and Equal Protection Clauses of the United States 

Constitution, Title II of the Americans with Disabilities Act, Section 504 of the Rehabilitation 

Act and the regulations promulgated thereto; 

6. Issue a permanent injunction requiring Defendants, within thirty days of its issuance, 

to submit to Plaintiff and to this Court for approval, a plan and schedule for ensuring that New 

Jersey hospitals are operated in compliance with the Due Process and Equal Protection Clauses 

of the United States Constitution, Title II of the Americans with Disabilities Act, Section 504 of 

the Rehabilitation Act and the regulations promulgated thereto. Such a plan and schedule shall 

include, but not be limited to: 

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(a) ensuring that when a patient refuses to consent to the administration of 

psychotropic drugs on a non-emergency basis, there is a judicial hearing to 

determine whether the patient is competent to make medical decisions before any 

such drugs may be administered; 

(b) ensuring that patients who refuse the administration of psychotropic drugs on a 

non-emergency basis are afforded representation by counsel at said hearing; 

(c) ensuring that a system for appointing experienced and knowledgeable counsel for 

refusing patients is established, and that such counsel be required to advocate for 

their clients’ desires and receive training about psychiatric practices; 

(d) ensuring that independent expert witnesses are appointed for patients upon 

request; 

(e) ensuring that patients may be involuntarily medicated on a non-emergency basis 

only if the state demonstrates by clear and convincing evidence that the patient 

lacks competence to make medical decisions and that the proposed treatment is 

narrowly tailored to give substantive effect to the patient’s liberty interests, taking 

into consideration all relevant circumstances, including the patient’s best interests, 

the benefits to be gained from the treatment, the adverse side effects associated 

with the treatment, and any less intrusive alternative treatments; 

(f) ensuring that all staff in New Jersey hospitals are trained in the proper and legal 

use of psychotropic medication; 

(g) ensuring that Defendants provide monthly reports to Plaintiff that include 

information such as the number of individuals involuntarily medicated, their 

names, medications prescribed and dosages, review of involuntarily medicated 

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patients, and other information the Plaintiff may require pursuant to its federal 

mandates; 

7. Grant to the Plaintiff its costs, expenses, and, pursuant to 42 U.S.C. § 1988, its 

reasonable attorney fees. 

8. Grant to the Plaintiff any other relief that this Court may deem just and proper. 

Dated: Trenton, New Jersey 

 August 3, 2010 

s/ William Emmett Dwyer

William Emmett Dwyer 

Disability Rights New Jersey, Inc. 

210 South Broad Street, Third Floor 

Trenton, NJ 08608 

Tel: (609) 292-9742 

Fax: (609) 777-0187 

Robert Cohen (pro hac vice pending) 

Shiva Farouki (pro hac vice pending) 

Michael D. Reisman (pro hac vice pending) 

Alexandra P. Kolod (pro hac vice pending) 

Kirkland & Ellis LLP 

601 Lexington Avenue 

New York, New York 10022 

Tel: (212) 446-4800 

Fax: (212) 446-6460 

 

Attorneys for Plaintiff Disability Rights New Jersey, Inc. 

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Certification Pursuant to Local Rule 201.1(d)(2)(A) 

William Emmett Dwyer certifies as follows: 

The within civil action is based on an alleged violation of a right secured by the 

Constitution of the United States. 

BY: s/ William Emmett Dwyer 

 William Emmett Dwyer, Esq. 

 Attorney for Plaintiff 

 Disability Rights New Jersey, Inc. 

 210 South Broad Street, Third Floor 

 Trenton, NJ 08608 

 Tel: (609) 292-9742 

 Fax: (609) 777-0187 

Dated: Trenton, New Jersey 

 August 3, 2010 

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Certification of No Other Action

William Emmett Dwyer certifies as follows: 

This matter is not the subject of any other action pending in any other court and is 

likewise not the subject of any pending arbitration proceeding or administrative proceeding. 

BY: s/ William Emmett Dwyer

 William Emmett Dwyer, Esq. 

 Attorney for Plaintiff 

 Disability Rights New Jersey, Inc. 

 210 South Broad Street, Third Floor 

 Trenton, NJ 08608 

 Tel: (609) 292-9742 

 Fax: (609) 777-0187 

Dated: Trenton, New Jersey 

 August 3, 2010 

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