“What are my chances?”

Jane sat quietly with me and another attorney in a room at Oregon State Hospital, holding a towel that she used to wipe away saliva that dripped from her mouth.  We were meeting to discuss her legal challenge to the hospital’s decision to force treatment on her that she did not want.  Unable to speak, she wrote slowly on a notepad in front of her, “What are my chances?”  We did not know how to respond because Jane was the first patient to use a new administrative procedure to challenge the hospital’s decision to subject her to involuntary medication.  See: Oregon Administrative Rules 309-114-0000 through -0030. 

It was December 2007, and the OARs had just been modified to ensure that residents of state psychiatric facilities have the right to procedural due process before being involuntary administered a “significant procedure” like psychotropic medication or electroconvulsive therapy.  Psychotropic medications are commonly used to treat symptoms of mental illnesses like schizophrenia and bipolar disorder.  These medications are highly intrusive in that they alter the chemical balance in the brain and may cause significant and potentially fatal side effects. 

The Supreme Court addressed the rights of prisoners with mental illness “to be free from the arbitrary administration” of psychotropic medications in Washington v. Harper.  494 U.S. 210, 221 (1990).  The Court held that there is a “significant liberty interest in avoiding the unwanted administration” of these medications, and the Fourteenth Amendment guarantees the right to procedural due process prior to being treated with them involuntarily.  Id., at 221-2.  This liberty interest can only be infringed after an inmate is provided an opportunity for due process, which must include minimum procedural safeguards.  Id., at 228-36

Prior to the rule changes, a patient’s treating psychiatrist conducted an evaluation of the patient’s capacity to give or withhold informed consent to treatment.  If the doctor found that the patient lacked capacity, an independent consultant would then evaluate the patient.  If these doctors agreed that the patient could not give or withhold informed consent, the individual would receive notification from the chief medical officer or hospital superintendent that the hospital intended to treat the patient with psychotropic medications.  After receiving this notice, the patient would not be allowed to refuse medications that the doctor prescribed.  For some patients, this meant they were injected with psychotropic medications without their consent.  Revisions to the OARs were necessary because a patient had no effective means to challenge the hospital’s decision to administer these involuntary treatments. 

The revised OARs provide that the state can involuntarily administer psychiatric medications if it can demonstrate that “good cause” exists.  The state must show that the person lacks capacity, or the ability to understand and reasonably weigh the risks and benefits of the proposed treatment.  It must also prove that the proposed treatment is likely to restore or prevent deterioration of the person’s mental or physical health, that it is the most appropriate treatment according to current clinical practice, and that no other less restrictive treatment would be effective.  OAR 309-114-0020.

Patients now have the right to a hearing in front of an independent decision-maker prior to being administered psychotropic medications without their consent.  OAR 309-114-0025.  Specially trained administrative law judges travel to state psychiatric institutions to conduct hearings and an attorney is appointed to represent the patient.  Hearings must be conducted within fourteen days of the date that the patient submits a request for hearing, and a written order is to be delivered within two business days following the hearing.  The patient has the right to appeal any unfavorable decision to the Oregon State Court of Appeals.  Even if a patient is required to accept medication, his or her capacity to consent to treatment must be reviewed at least once every 180 days thereafter. 

For Jane, this hearing was a significant event.  She was diagnosed with schizoaffective disorder many years ago, and the side effects of the medications that she was forced to take were severely impacting her quality of life.  She sometimes heard frightening voices and acknowledged that psychotropic medication can help reduce the intensity and frequency of those voices.  Jane was unable to speak due to a progressive neurological condition and relied on her ability to write or type to communicate.  Her medications caused a significant hand tremor that made it extremely difficult for her to communicate with others.  Jane, an accomplished artist, was also robbed by the tremor of her ability to paint and draw, an activity that gave her solace.  In addition, she experienced drooling caused by the medications, which she found very embarrassing.  

At her hearing, Jane informed the judge that she believed medication had been helpful to her in the past and likely would be in the future.  In the dosages and combinations that she was being forced to take, however, she was experiencing such significant side effects that the benefits of having fewer psychiatric symptoms no longer outweighed the risks of the treatment.  The judge was convinced that Jane had the capacity to give or withhold her consent to treatment and ruled in her favor.  As a result, Jane did not stop taking medicine.  She was able to work with her treating psychiatrist to identify a dosage of medication that quieted the voices to the point that they were no longer disturbing to her with only minimal drooling and tremors. 

For Jane and other patients who are able to demonstrate their ability to understand and weigh the risks and benefits of the proposed treatment, the new involuntary treatment procedures have been life altering.  Jane reported that she now feels listened to and respected, and she values her new-found ability to work closely with her doctor to manage her psychiatric symptoms.  Even patients who were unable to demonstrate capacity at a hearing have indicated that they appreciated the right to be heard and file an appeal if they were dissatisfied with the judge’s decision.  And finally, even doctors have shared that they learn things about their patients during hearings that they might not have learned otherwise.

Today, doctors in state facilities continue to evaluate their patients’ capacity to give or withhold consent to medication, and request that outside consultants evaluate those patients that lack capacity.  Patients report a greater willingness on the part doctors to work collaboratively.  As part of this process, some patients choose to take medication and others work with their physician to manage their mental health symptoms without psychotropic medications.  But the greatest success related to these rule changes is that procedural safeguards are in place to protect the fundamental human rights of patients in state psychiatric institutions.