|||THE SUPREME COURT OF THE STATE OF OHIO
|||October 18, 2000
|||STEELE, APPELLANT, V. HAMILTON COUNTY COMMUNITY MENTAL HEALTH BOARD, APPELLEE.
|||Appeal from the Court of Appeals for Hamilton County, No. C-980965.
|||D. Shannon Smith and James R. Bell, for appellant. Faulkner & Tepe
and A. Norman Aubin, for appellee. Michael Kirkman, urging reversal for
amicus curiae, Ohio Legal Rights Service.
|||The opinion of the court was delivered by: Douglas, J.
|||Public welfare - Hospitalization of mentally ill persons - State's interest
in protecting its citizens outweighs an involuntarily committed mentally
ill patient's interest in refusing antipsychotic medication, when - Physician
may order forced medication of an involuntarily committed mentally ill patient
with antipsychotic drugs, when - Court may issue an order permitting hospital
employees to administer antipsychotic drugs against the wishes of an involuntarily
committed mentally ill person, when.
|||1. When an involuntarily committed mentally ill patient poses an imminent
threat of harm to himself/herself or others, the state's interest in protecting
its citizens outweighs the patient's interest in refusing antipsychotic
medication. Authority for invoking the state's interest flows from the police
power of the state.
|||2. Whether an involuntarily committed mentally ill patient poses an imminent
threat of harm to himself/herself or others warranting the administration
of antipsychotic drugs against the patient's will is uniquely a medical,
rather than a judicial, determination to be made by a qualified physician.
|||3. A physician may order the forced medication of an involuntarily committed
mentally ill patient with antipsychotic drugs when the physician determines
that (1) the patient presents an imminent danger of harm to himself/herself
or others, (2) there are no less intrusive means of avoiding the threatened
harm, and (3) the medication to be administered is medically appropriate
for the patient.
|||4. When an involuntarily committed mentally ill patient, who does not
pose an imminent threat of harm to himself/herself or others, lacks the
capacity to give or withhold informed consent regarding his/her treatment,
the state's parens patriae power may justify treating the patient with antipsychotic
medication against his/her wishes. In re Milton (1987), 29 Ohio St.3d 20,
29 OBR 373, 505 N.E.2d 255, modified.
|||5. Whether an involuntarily committed mentally ill patient, who does not
pose an imminent threat of harm to himself/herself or others, lacks the
capacity to give or withhold informed consent regarding treatment is uniquely
a judicial, rather than a medical, determination.
|||6. A court may issue an order permitting hospital employees to administer
antipsychotic drugs against the wishes of an involuntarily committed mentally
ill person if it finds, by clear and convincing evidence, that (1) the patient
does not have the capacity to give or withhold informed consent regarding
his/her treatment, (2) it is in the patient's best interest to take the
medication, i.e., the benefits of the medication outweigh the side effects,
and (3) no less intrusive treatment will be as effective in treating the
|||Submitted June 6, 2000
|||On July 26, 1997, appellant, Jeffrey Steele, was taken by a police officer
to University of Cincinnati Hospital ("University Hospital") after
appellant's family reported that appellant was "seeing things and trying
to fight imaginary foes." After observing appellant, a hospital physician
noted that appellant was "responding to internal stimuli," and
the physician recommended that appellant be "hospitalized for [the]
protection of others and for stabilization/treatment of psychosis."
In accordance with R.C. 5122.10, appellant was detained at University Hospital.
|||On July 29, in accordance with R.C. 5122.11, R. Gregory Rohs, M.D., a
University Hospital physician, filed an affidavit in the Court of Common
Pleas of Hamilton County, Probate Division, stating that appellant, because
of his mental illness, posed a substantial and immediate risk of physical
impairment or injury to himself as manifested by evidence that he was unable
to provide for his basic physical needs. Dr. Rohs's affidavit also stated
that appellant had a history of odd and paranoid behaviors, including refusing
to eat food prepared by his family, talking to himself, making threats to
his family, forcing himself to throw up every morning, and failing to bathe
or groom. While detained at University Hospital appellant exhibited substantially
identical behavior. Dr. Rohs's affidavit indicated that, while appellant
was hospitalized, appellant was withdrawn, did not maintain his hygiene,
appeared to have disorganized thought processes, seemed to be responding
to internal stimuli, refused medications, and appeared guarded and suspicious.
The affidavit concluded that appellant was most likely suffering from paranoid
|||In accordance with R.C. 5122.141, the probate court ordered a hearing,
to be held on August 1, on Dr. Rohs's affidavit. The court further ordered
that appellant was to be detained at University Hospital pending the outcome
of the hearing. Pursuant to R.C. 5122.14, the court appointed a psychiatrist,
Cyma Khalily, M.D., as an independent expert to examine appellant and report
her findings to the court. An attorney was appointed to represent appellant.
See R.C. 5122.15.
|||At the conclusion of the August 1 hearing, the probate court found, by
clear and convincing evidence, that appellant was mentally ill, and the
court ordered that appellant be committed to a hospital. R.C. 5122.15. As
a result of the court's ruling, appellant remained involuntarily hospitalized
at University Hospital.
|||Thereafter, University Hospital sought an order from the probate court
permitting appellant's transfer to the Pauline Warfield Lewis Center ("Lewis
Center"). The motion stated that the transfer was in appellant's best
interest because, due to his mental illness, appellant was unable to comply
with his required treatment and he needed long-term treatment and/or forced
medication care. The probate court granted University Hospital's motion,
and appellant was transferred to the Lewis Center on August 12.
|||On September 26, appellee, Hamilton County Community Mental Health Board,
sought a court order permitting the Lewis Center employees to administer
to appellant without his informed consent. A hearing on the motion for forced
medication was held on October 31.
|||Three psychiatrists testified at the hearing: Dr. Michael Newton, appellant's
treating physician at the Lewis Center; Dr. Paul Keck of University Hospital;
and Dr. Cyma Khalily, the psychiatrist appointed by the probate court. All
three physicians testified that appellant was suffering from a form of schizophrenia,
that in the hospital environment appellant was not an immediate danger to
himself or others, that appellant lacked the capacity to give or withhold
informed consent, that antipsychotic medication was the only effective treatment
for appellant's illness, that the benefits of the medication outweighed
the side effects, and that appellant's illness, without treatment, prevented
him from being released from the hospital.
|||At the conclusion of the October 31, 1997 hearing, the magistrate orally
denied the motion for forced medication. The magistrate's decision was centered
on his finding that appellee had not shown by "clear and convincing
evidence that [appellant] represent[ed] a grave and immediate danger of
serious physical harm to himself or others."
|||Subsequently, the magistrate, on December 3, filed findings of fact and
conclusions of law in support of his decision. In part, the magistrate's
report concluded that, at the time of the hearing, appellant suffered from
a form of schizophrenia that resulted in "a substantial disorder of
thought [that] grossly impair[ed] his behavior and judgment," requiring
"treatment that include[d] in-patient hospitalization and highly supervised
care." The magistrate also found that appellant was not violent or
suicidal or disruptive to the ward in any way. In addition, the magistrate
found that appellant lacked the capacity to give or withhold informed consent
regarding treatment. The magistrate concluded that appellant should not
be forcibly medicated.
|||Appellee, on December 15, filed objections to the magistrate's findings
of fact and conclusions of law, arguing that "a showing of dangerousness
is not required by Ohio law or statute in order to grant the authority for
forced medications." After hearing arguments on the objections, the
probate judge, on February 19, 1998, remanded the matter to the magistrate
"for clarification of the Magistrate's Findings of Fact regarding the
severity or gravity of [appellant's] mental illness."
|||The magistrate's rehearing was held on May 22 and May 29, 1998. Following
the rehearing, the magistrate again denied appellee's motion for court-ordered
medication of appellant. On November 9,*fn2
the probate judge filed an opinion and entry upholding the magistrate's
findings of fact and conclusions of law on rehearing. In its opinion, the
court held that Ohio policy only "authorize[d] the forced medication
of psychotropic drugs upon a showing that the patient has a serious mental
illness, is a danger to his or her self or to others within the institution,
and the treatment is in the patient's medical interest."*fn3
|||On December 8, appellee appealed the probate court's ruling to the Court
of Appeals for Hamilton County. The court of appeals reversed the judgment
of the probate court and held that "an applicant need not prove that
an involuntarily committeed [sic] patient poses a risk of danger to himself
or others to obtain an order to forcibly medicate the patient, when the
applicant has otherwise shown that medication is in the patient's best interest,
and when the patient lacks the capacity to give or withhold informed consent
for such treatment."
|||This cause is now before this court pursuant to the allowance of a discretionary
|||The issue in this case is whether a probate court must find that an involuntarily
committed mentally ill person is a danger to himself/herself or others before
the court may issue an order permitting employees of the commitment facility
to administer antipsychotic medication to the patient against his/her wishes.
For the reasons that follow, we find that a court may issue an order permitting
the administration of antipsychotic medication*fn4
against a patient's wishes without a finding that the patient is dangerous
when the court finds by clear and convincing evidence that the patient lacks
the capacity to give or withhold informed consent regarding treatment, the
medication is in the patient's best interest, and no less intrusive treatment
will be as effective in treating the mental illness. Accordingly, we affirm
the judgment of the court of appeals.
|||The right to refuse medical treatment is a fundamental right in our country,
where personal security, bodily integrity, and autonomy are cherished liberties.
These liberties were not created by statute or case law. Rather, they are
rights inherent in every individual. Section 1, Article I of the Ohio Constitution
provides that "[a]ll men are, by nature, free and independent, and
have certain inalienable rights, among which are those of enjoying and defending
life and liberty, acquiring, possessing, and protecting property, and seeking
and obtaining happiness and safety." (Emphasis added.) Our belief in
the principle that "[e]very human being of adult years and sound mind
has a right to determine what shall be done with his own body," Schloendorff
v. Soc. of N.Y. Hosp. (1914), 211 N.Y. 125, 129, 105 N.E. 92, 93, is reflected
in our decisions. See, e.g., Nickell v. Gonzalez (1985), 17 Ohio St.3d 136,
17 OBR 281, 477 N.E.2d 1145 (setting out the test for establishing the tort
of lack of informed consent); In re Milton (1987), 29 Ohio St.3d 20, 29
OBR 373, 505 N.E.2d 255 (holding that potentially life-saving treatment
for cancer could not be forced upon mentally ill person who had the capacity
to give or withhold informed consent).
|||In Washington v. Harper (1990), 494 U.S. 210, 221, 110 S.Ct. 1028, 1036,
108 L.Ed.2d 178, 198, the United States Supreme Court determined that persons
suffering from a mental illness have a "significant liberty interest"
in avoiding the unwanted administration of antipsychotic drugs. That liberty
interest is protected by the Due Process Clause of the Fourteenth Amendment
to the United States Constitution, which provides that no state shall "deprive
any person of life, liberty, or property, without due process of law."
Id. at 221-222, 110 S.Ct. at 1036, 108 L.Ed.2d at 198. Likewise, Section
16, Article I of the Ohio Constitution encompasses due process language
that provides substantially the same safeguards as does the Fourteenth Amendment.
|||The right to refuse medication, however, is not absolute and it must yield
when outweighed by a compelling governmental interest. Cruzan v. Dir., Mo.
Dept. of Health (1990), 497 U.S. 261, 278-279, 110 S.Ct. 2841, 2851-2852,
111 L.Ed.2d 224, 241-242. See, also, State v. Williams (2000), 88 Ohio St.3d
513, 523, 728 N.E.2d 342, 353-354 ("[R]ights outlined in Section 1,
Article I [of the Ohio Constitution] will, at times, yield to government
intrusion when necessitated by the public good"). In order for us to
determine whether a court must find a mentally ill person to be a danger
to himself/herself or others before it may issue an order permitting forced
medication, we must first determine which, if any, state interests outweigh
the individual's right to refuse medication.
|||The first step in our analysis is to examine the individual's interest
in avoiding forced medication through treatment with antipsychotic drugs.
We will then determine under what circumstances, if any, that interest must
yield to competing governmental interests.
|||The liberty interests infringed upon when a person is medicated against
his or her wishes are significant. "The forcible injection of medication
into a non-consenting person's body represents a substantial interference
with that person's liberty." Harper, 494 U.S. at 229, 110 S.Ct. at
1041, 108 L.Ed.2d at 203. This type of intrusion clearly compromises one's
liberty interests in personal security, bodily integrity, and autonomy.
|||The intrusion is "particularly severe" when the medications
administered by force are antipsychotic drugs because of the effect of the
drugs on the human body. Riggins v. Nevada (1992), 504 U.S. 127, 134, 112
S.Ct. 1810, 1814, 118 L.Ed.2d 479, 488. Antipsychotic drugs alter the chemical
balance in a patient's brain producing changes in his or her cognitive processes.
Id. at 134, 112 S.Ct. at 1814, 118 L.Ed.2d at 488; Harper, 494 U.S. at 229,
110 S.Ct. at 1041, 108 L.Ed.2d at 203. See, also, Winick, The Right to Refuse
Mental Health Treatment (1997) 61-65 ("Winick"). In fact, an alteration
of a patient's cognitive process is the intended result of the antipsychotic
drugs. The drugs are administered with the expectation that the resulting
changes will "assist the patient in organizing his or her thought processes
and regaining a rational state of mind." Harper, 494 U.S. at 214, 110
S.Ct. at 1032, 108 L.Ed.2d at 193.
|||The interference with one's liberty interest is further magnified by the
negative side effects that often accompany antipsychotic drugs, some of
which can be severe and/or permanent. Riggins, 504 U.S. at 134, 112 S.Ct.
at 1814, 118 L.Ed.2d at 488; Harper, 494 U.S. at 229, 110 S.Ct. at 1041,
108 L.Ed.2d at 203; Winick at 72-75. The most common side effects of the
antipsychotic drugs are Parkinsonian syndrome, akathisia, dystonia, and
dyskinesia. Harper, 494 U.S. at 229-230, 110 S.Ct. at 1041, 108 L.Ed.2d
at 203; Mills v. Rogers (1982), 457 U.S. 291, 293, 102 S.Ct. 2442, 2445,
73 L.Ed.2d 16, 19, fn. 1; Rivers v. Katz (1986), 67 N.Y.2d 485, 490, 504
N.Y.S.2d 74, 76, 495 N.E.2d 337, 339, fn. 1; Winick at 72-75; Gutheil &
Appelbaum, "Mind Control," "Synthetic Sanity," "Artificial
Competence," and Genuine Confusion: Legally Relevant Effects of Antipsychotic
Medication (1983), 12 Hofstra L.Rev. 77, 107.
|||"Parkinsonian syndrome * * * consists of muscular rigidity, fine
resting tremors, a masklike face, salivation, motor retardation, a shuffling
gait, and pill-rolling hand movements. Akathisia is a feeling of motor restlessness
or of a compelling need to be in constant motion * * *. Dystonia involves
bizarre muscular spasm, primarily of the muscles of the head and neck, often
accompanied by facial grimacing, involuntary spasm of the tongue and mouth
interfering with speech and swallowing, oculogyric crisis marked by eyes
flipping to the top of the head in a painful upward gaze persisting for
minutes or hours, convulsive movements of the arms and head, bizarre gaits,
and difficulty walking. The dyskinesias present a broad range of bizarre
tongue, face, and neck movements." Winick at 72-73.
|||Virtually all of these reactions are reversible within hours or days of
discontinuing the antipsychotic medication. Id. at 73. However, tardive
dyskinesia, which consists of slow, rhythmical, repetitive, involuntary
movements of the mouth, lips, and tongue, is permanent and there is no known
effective treatment for managing its symptoms. Id. at 73-74; Harper, 494
U.S. at 230, 110 S.Ct. at 1041, 108 L.Ed.2d at 203; Rogers, 457 U.S. at
293, 102 S.Ct. at 2445, 73 L.Ed.2d at 19, fn. 1.
|||Experts disagree as to the percentage of patients who will develop tardive
dyskinesia after being treated with antipsychotic drugs. Winick at 74, fn.
69; Harper, 494 U.S. at 230, 110 S.Ct. at 1041, 108 L.Ed.2d at 203. In Harper,
the United States Supreme Court found sufficient evidence to support the
finding that ten to twenty-five percent of patients treated with antipsychotic
medication developed tardive dyskinesia and among that group, sixty percent
had mild symptoms while ten percent demonstrated more severe symptoms. Harper,
494 U.S. at 230, 110 S.Ct. at 1041, 108 L.Ed.2d at 204.
|||Another potential side effect of antipsychotic medication is neuroleptic
malignant syndrome. This is a rare but potentially deadly syndrome that
develops quickly and leads to death in twenty-five percent of those who
develop it. Id., 494 U.S. at 230, 110 S.Ct. at 1041, 108 L.Ed.2d at 203;
Winick at 74.
|||In light of the foregoing, it is clear why the United States Supreme Court
recognized that a substantial liberty interest was at stake in these cases.
Whether the potential benefits are worth the risks is a personal decision
that, in the absence of a compelling state interest, should be free from
|||We now turn to the second step of our analysis to determine whether, in
some circumstances, a person's liberty interest in refusing antipsychotic
medication is outweighed by a competing government interest.
|||One state interest that is sufficiently compelling to override an individual's
decision to refuse antipsychotic medication is the state's interest in preventing
mentally ill persons from harming themselves or others. Many courts have
held that hospital personnel and prison officials may administer antipsychotic
drugs to mentally ill persons to prevent harm. See, e.g., Harper, supra;
Riggins, supra; Rennie v. Klein (C.A.3, 1983), 720 F.2d 266 (en banc); Rogers
v. Okin (C.A.1, 1984), 738 F.2d 1; Bee v. Greaves (C.A.10, 1984), 744 F.2d
1387, certiorari denied (1985), 469 U.S. 1214, 105 S.Ct. 1187, 84 L.Ed.2d
334; Large v. Superior Court (1986), 148 Ariz. 229, 714 P.2d 399 (en banc);
Rivers, supra; Rogers v. Commr. of Mental Health (1983), 390 Mass. 489,
458 N.E.2d 308. The state's interest in protecting its citizens flows from
the state's police power. The state's right to invoke its police power in
these cases turns upon the determination that an emergency exists in which
a failure to medicate a mentally ill person with antipsychotic drugs would
result in a substantial likelihood of physical harm to that person or others.
Because this power arises only when there is an imminent threat of harm,
the decision whether to medicate the patient must be made promptly in order
to respond before any injury occurs. For this reason, there is no time for
a judicial hearing and medical personnel must make the determination whether
the patient is an imminent danger to himself/herself or others.
|||The requirement that medical personnel determine that there is an imminent
danger of harm cannot be overemphasized. The police power may not be asserted
broadly to justify keeping patients on antipsychotic drugs to keep them
docile and thereby avoid potential violence. Moreover, this governmental
interest justifies forced medication only as long as the emergency persists.
Furthermore, the medication must be medically appropriate for the individual
and it must be the least intrusive means of accomplishing the state's interest,
i.e., preventing harm.
|||Accordingly, we hold that when an involuntarily committed mentally ill
patient poses an imminent threat of harm to himself/herself or others, the
state's interest in protecting its citizens outweighs the patient's interest
in refusing antipsychotic medication. Authority for invoking the state's
interest flows from the police power of the state. Whether an involuntarily
committed mentally ill patient poses an imminent threat of harm to himself/herself
or others warranting the administration of antipsychotic drugs against the
patient's will is uniquely a medical, rather than a judicial, determination
to be made by a qualified physician. A physician may order the forced medication
of an involuntarily committed mentally ill patient with antipsychotic drugs
when the physician determines that (1) the patient presents an imminent
danger of harm to himself/herself or others, (2) there are no less intrusive
means of avoiding the threatened harm, and (3) the medication to be administered
is medically appropriate for the patient.
|||While this holding appears to be placing tremendous power and authority
in the hands of individual physicians, we are nevertheless reminded that
physicians are "dedicated to providing competent medical service with
compassion and respect for human dignity." Principle I, American Medical
Association Code of Medical Ethics (1994) XV. "I will follow that system
of regimen which, according to my ability and judgment, I consider for the
benefit of my patients, and abstain from whatever is deleterious and mischievous."
The Oath of Hippocrates, 38 Harvard Classics (1910) 3. We are confident
that properly trained, competent, and compassionate physicians will not
abuse such power.
|||In the case at bar, appellant's treating physician testified that appellant
was not an imminent danger to himself or others. The hospital, therefore,
was precluded from relying on the state's police power to override appellant's
decision to refuse medication.
|||A second state interest recognized by many courts to be sufficiently compelling
to override a mentally ill patient's decision to refuse antipsychotic medication
is the state's parens patriae power.*fn5
See, e.g., Rivers, supra; Rogers v. Okin (C.A.1, 1984), 738 F.2d 1; Davis
v. Hubbard (N.D.Ohio 1980), 506 F.Supp. 915; People v. Medina (Colo.1985),
705 P.2d 961 (en banc); Rogers v. Commr. of Mental Health, supra; In re
K.K.B. (Okla.1980), 609 P.2d 747; Steinkruger v. Miller (2000), 2000 S.D.
83, 612 N.W.2d 591; In re C.E. (1994), 161 Ill.2d 200, 204 Ill.Dec. 121,
641 N.E.2d 345; In re Guardianship of Linda (1988), 401 Mass. 783, 519 N.E.2d
1296; Jarvis v. Levine (Minn.1988), 418 N.W.2d 139; In re Mental Commitment
of M.P. (Ind.1987), 510 N.E.2d 645; Opinion of the Justices (1983), 123
N.H. 554, 465 A.2d 484. Today, we too adopt the view that the state's parens
patriae power can override a mentally ill patient's decision to refuse antipsychotic
|||A state's parens patriae power allows it to care for citizens who are
unable to take care of themselves. Addington v. Texas (1979), 441 U.S. 418,
426, 99 S.Ct. 1804, 1809, 60 L.Ed.2d 323, 331. Because this power turns
on a person's inability to care for himself/herself, it is legitimately
invoked in forced-medication cases only when the patient lacks the capacity
to make an informed decision regarding his/her treatment. Davis, 506 F.Supp.
at 935-936; Rivers, 67 N.Y.2d at 496, 504 N.Y.S.2d at 80, 495 N.E.2d at
343 ("The sine qua non for the state's use of its parens patriae power
as justification for the forceful administration of mind-affecting drugs
is a determination that the individual to whom the drugs are to be administered
lacks the capacity to decide for himself whether he should take the drugs.").
Thus, we hold that when an involuntarily committed mentally ill patient,
who does not pose an imminent threat of harm to himself/herself or others,
lacks the capacity to give or withhold informed consent regarding his/her
treatment, the state's parens patriae power may justify treating the patient
with antipsychotic medication against his/her wishes. In re Milton, supra,
is therefore modified.
|||We recognize that this holding is inconsistent with our statement in Milton
that "the state may not act in a parens patriae relationship to a mental
hospital patient unless the patient has been adjudicated incompetent."
(Emphasis added.) Id. at 23, 29 OBR at 376, 505 N.E.2d at 257-258. We no
longer adhere to that absolutist position.*fn6
"Traditionally, an adjudication of incompetency rendered an individual
generally incompetent-he was placed under total legal disability and a guardian
was appointed to make all decisions on his behalf. The law has moved strongly
away from this notion of general incompetency in favor of an approach requiring
adjudications of specific incompetency. Under the more modern view, the
law determines an individual to be incompetent to perform only particular
tasks or roles, such as: to decide on hospitalization; to manage property;
to consent to treatment; or to stand trial. This adjudication of specific
incompetency does not render the individual legally incompetent to perform
other tasks or to play other roles." Winick, Competency to Consent
to Treatment: The Distinction Between Assent and Objection (1991), 28 Hous.L.Rev.
15, 22-24. See, also, Appelbaum & Gutheil, Clinical Handbook of Psychiatry
and the Law (2 Ed.1991) 225.
|||We accept the concept of specific incompetency, at least in the context
addressed herein. Therefore, a person need not be adjudicated incompetent
before the state's parens patriae power is legitimately invoked in a forced
medication case. It is sufficient that the court find by clear and convincing
evidence that the patient lacks the capacity to give or withhold informed
consent regarding treatment. We believe that requiring an adjudication of
general incompetence in these cases would result in the unnecessary removal
of additional civil rights particularly when a specific finding of lack
of capacity regarding treatment is sufficient. Furthermore, it allows the
patient to avoid the added stigma that often attaches to a person who has
been adjudicated incompetent.
|||Perhaps contrary to common belief, a court's determination that a person
is mentally ill and subject to involuntary commitment in a hospital is not
equivalent to a finding that the person is incompetent. Milton, 29 Ohio
St.3d at 22, 29 OBR at 375, 505 N.E.2d at 257; Rivers, 67 N.Y.2d at 494-495,
504 N.Y.S.2d at 79, 495 N.E.2d at 341-342; Appelbaum & Gutheil, Clinical
Handbook of Psychiatry and the Law, at 220 ("The mere presence of psychosis,
dementia, mental retardation, or some other form of mental illness or disability
is insufficient in itself to constitute incompetence."). In fact, a
person's involuntary commitment to a hospital due to a mental illness does
not even raise a presumption that the patient is incompetent. Milton, 29
Ohio St.3d at 22-23, 29 OBR at 375, 505 N.E.2d at 257. Under Ohio law, these
patients retain all civil rights not specifically denied in the Revised
Code or removed by an adjudication of incompetence. Id. at 23, 29 OBR at
375, 505 N.E.2d at 257; R.C. 5122.301. The rights retained include, among
others, the right to contract, hold a professional license, marry, obtain
a divorce, make a will, and vote. R.C. 5122.301; see Milton at 23, 29 OBR
at 375, 505 N.E.2d at 257.
|||Based on the foregoing, it is clear that mental illness and incompetence
are not one and the same. Therefore, the state may not rely on its parens
patriae power to justify making treatment decisions for a mentally ill person
simply because that person has been involuntarily committed. Before invoking
this power, the state must first prove by clear and convincing evidence
that the patient lacks the capacity to give or withhold informed consent
regarding treatment. Whether an involuntarily committed mentally ill patient,
who does not pose an imminent threat of harm to himself/herself or others,
lacks the capacity to give or withhold informed consent regarding treatment
is uniquely a judicial, rather than a medical, determination. If a court
does not find that the patient lacks such capacity, then the state's parens
patriae power is not applicable and the patient's wishes regarding treatment
will be honored, no matter how foolish some may perceive that decision to
v. Commr. of Mental Health, 390 Mass. at 497-498, 458 N.E.2d at 314, quoting
Harnish v. Children's Hosp. Med. Ctr. (1982), 387 Mass. 152, 154, 439 N.E.2d
240, 242 (" `Every competent adult has a right "to forego treatment,
or even cure, if it entails what for him are intolerable consequences or
risks however unwise his sense of values may be in the eyes of the medical
profession." ' ").
|||Conversely, when a court finds by clear and convincing evidence that a
patient lacks the capacity to give or withhold informed consent regarding
treatment, then the state's interest in caring for its citizen overrides
the patient's interest in refusing treatment. When, in addition, the court
also finds by clear and convincing evidence that the benefits of the antipsychotic
medication outweigh the side effects, and that there is no less intrusive
treatment that will be as effective in treating the illness, then it may
issue an order permitting forced medication of the patient. Accordingly,
we hold that a court may issue an order permitting hospital employees to
administer antipsychotic drugs against the wishes of an involuntarily committed
mentally ill person if it finds, by clear and convincing evidence, that
(1) the patient does not have the capacity to give or withhold informed
consent regarding his/her treatment, (2) it is in the patient's best interest
to take the medication, i.e., the benefits of the medication outweigh the
side effects, and (3) no less intrusive treatment will be as effective in
treating the mental illness.
|||Because of the significant liberty interest affected when an individual
is medicated against his/her will with antipsychotic medication, we do not
come to this decision lightly. We have attempted to craft a decision that
acknowledges a person's right to refuse antipsychotic medication, and yet
recognizes that mental illness sometimes robs a person of the capacity to
make informed treatment decisions. Only when a court finds that a person
is incompetent to make informed treatment decisions do we permit the state
to act in a paternalistic manner, making treatment decisions in the best
interest of the patient.
|||We also note that, in making our decision, we took into consideration
not only the potential severe side effects of antipsychotic drugs, but also
the well-documented therapeutic benefits of antipsychotic medication. "
`Psychotropic medication is widely accepted within the psychiatric community
as an extraordinarily effective treatment for both acute and chronic psychoses,
particularly schizophrenia.' " Harper, 494 U.S. at 226, 110 S.Ct. at
1039, 108 L.Ed.2d at 201, fn. 9, quoting Brief for American Psychological
Association et al. as amici curiae. See, also, Winick at 70. Prior to the
use of antipsychotic medication in the treatment of schizophrenia and related
psychoses, persons suffering from these illnesses were placed in hospitals
with little chance of being released. Because these mental illnesses are
frequently manifested by uncooperative behavior, psychotherapy is not an
effective treatment. Hospitals were, therefore, providing nothing more than
custodial care to these patients. Since physicians began treating mental
illnesses with antipsychotic medication in the 1950s, the number of mentally
ill persons requiring long-term hospitalization has been greatly reduced.
Winick at 68-69; Gutheil & Appelbaum, 12 Hofstra L.Rev. at 99-101; Riese
v. St. Mary's Hosp. & Med. Ctr. (1987), 209 Cal.App.3d 1303, 1310-1311,
271 Cal.Rptr. 199, 203.
|||We believe that a failure to recognize the state's parens patriae power
in these cases would result in the warehousing of those patients who, against
their best interest, refuse medication when they do not have the capacity
to comprehend their decision. We believe such a result is inhumane and,
|||In the case at bar, the probate court found that appellant lacked the
capacity to give or withhold informed consent regarding his treatment, thereby
triggering the state's parens patriae power. The additional findings required
by our holding, i.e., whether the medication is in the patient's best interest
and whether a less intrusive treatment would be as effective, must be made
before a decision regarding forced medication of appellant can be made.
We do not, however, remand this case for those additional findings because,
as indicated in appellant's brief and at oral argument, appellant is voluntarily
taking antipsychotic medication.*fn8
|||One last issue remains. We indicated that the Due Process Clause of the
Fourteenth Amendment to the United States Constitution protects each person's
liberty interest in refusing medication. Up to this point, we have addressed
mainly substantive due process issues, e.g., the factual circumstances that
must exist before antipsychotic drugs may be administered to a patient against
his/her wishes. Although appellant did not raise any procedural due process
issues in the instant case, we believe it advisable that we discuss the
procedural due process that must be afforded in a forced medication proceeding,
i.e., the procedures that must be followed in determining the pertinent
|||As indicated previously, when the state's police power is invoked, a trained
physician determines the relevant facts. The physician is bound by his profession
to follow the appropriate accepted medical guidelines when making his/her
|||We now turn to the procedures required when determining whether the forced
medication of a mentally ill person pursuant to the state's parens patriae
power outweighs an involuntarily committed mentally ill person's interest
in refusing antipsychotic medication. We have stated that when a treating
physician claims that the state's parens patriae power permits forced medication,
such determination is a uniquely judicial function. Accordingly, if the
patient is not represented by an attorney, then an attorney must be appointed
to represent the patient; an independent "psychiatrist or a licensed
clinical psychologist and a licensed physician"*fn9
must be appointed to examine the patient, to evaluate the recommended treatment,
and to report such findings and conclusions to the court regarding the patient's
capacity to give or withhold informed consent as well as the appropriateness
of the proposed treatment; and the patient, his/her attorney, and treating
physicians must receive notice of all hearings and the patient must be provided
the opportunity to be present at all hearings and to present and cross-examine
witnesses. Of course, the court may implement additional procedures to protect
the patient's rights as the court sees fit, such as the appointment of a
guardian ad litem to represent the interests of the patient.
|||Additional procedures, such as periodic hearings to reevaluate the patient's
capacity and the efficacy of the treatment, will be necessary in those cases
where an order is issued permitting the forced administration of drugs.
We realize that each forced medication case is unique and, therefore, we
do not set specific guidelines other than to state that all court orders
permitting the administration of antipsychotic drugs against a patient's
wishes should be periodically reviewed, and continued forced medication
should be substantiated by competent medical evidence. Appropriate motions
to continue forced medication may be filed as the need arises. A motion
to continue forced medication is subject to the same procedural safeguards
as an original motion for forced medication.
|||As stated above, appellant did not argue that his procedural due process
rights were violated in the instant case. However, our review of the record
indicates that the procedures followed by the probate court were sufficient.
|||For the reasons set forth above, we affirm the judgment of the court of
|||Moyer, C.J., Resnick, F.E. Sweeney and Lundberg Stratton, JJ., concur.
|||Pfeifer, J., concurs in part.
|||Pfeifer, J., concurring in part.
|||I concur with the court's holding and all of the syllabus paragraphs except
paragraphs three and four. In my view, paragraphs three and four of the
syllabus answer important legal questions that are not present in this particular
case. I would save the resolution of those issues for a more appropriate
case. I am troubled by the notion that involuntarily committed mentally
ill patients will have their lives greatly altered by potentially dangerous
drugs with little recourse in the legal system.
|||Cook, J., concurs in judgment.
used in this case, the term "antipsychotic medication" refers
to medications such as Haldol, Prolixin, and Trilafon that are used in treating
psychoses, especially schizophrenia. These drugs were introduced into psychiatry
in the early 1950s and are effective in treating psychotic disorders because
they can bring about chemical changes in the brain. They also often produce
adverse side effects, some of which may be controlled by additional medications.
The seriousness of the possible side effects of these types of drugs cannot
be overstated. For a full discussion, see Cichon, The Right to "Just
Say No": A History and Analysis of the Right to Refuse Antipsychotic
Drugs (1992), 53 La.L.Rev. 283, 297-311. Appellee's motion for forced medication
of appellant included medication (Cogentin) to alleviate side effects caused
by the antipsychotic medication.
set forth all of the pertinent dates of these proceedings to illuminate
the lengthy delays, some necessary and some unnecessary, involved in these
types of cases. The necessity to make such cases priority matters is obvious.
drugs are "compounds that affect the mind, behavior, intellectual functions,
perception, moods, and emotions." Winick, The Right to Refuse Mental
Health Treatment (1997) 61, citing Kaplan et al., Synopsis of Psychiatry:
Behavioral Sciences and Clinical Psychiatry (1994) 410. Antipsychotic drugs
are a type of psychotropic drug. Winick at 65; Gutheil & Appelbaum,
"Mind Control," "Synthetic Sanity," "Artificial
Competence," and Genuine Confusion: Legally Relevant Effects of Antipsychotic
Medication (1983), 12 Hofstra L.Rev. 77, 79.
this opinion we refer to medicating patients with antipsychotic drugs. We
wish to make clear that when a court is justified in allowing the administration
of antipsychotic drugs against the patient's wishes, it is also justified
in allowing, against the patient's wishes, the administration of those medications
necessary to alleviate side effects of the antipsychotic drugs.
patriae means "parent of his or her country," and refers to "[t]he
state regarded as a sovereign; the state in its capacity as provider of
protection to those unable to care for themselves." Black's Law Dictionary
(7 Ed.1999) 1137.
we no longer approve of the statement in Milton regarding when the parens
patriae power may be invoked, we nevertheless recognize that the decision
in Milton was proper and fully supported. Milton was decided in the context
of a religious objection by a competent individual, and the parens patriae
power was not at issue in that decision.
exception is, of course, where the state's police power is implicated.
recognize that an argument can be made that the question concerning appellant
now before us is moot because he is voluntarily taking antipsychotic medications.
We find, however, that there is no evidence in the record that appellant
has recovered from his mental illness or that he has been released from
the Lewis Center. Should appellant refuse antipsychotic medication in the
future, which is possible given his medical condition, it is reasonable
to expect that he would again be subject to an action for forced medication.
Thus, the issue is one that is capable of repetition, yet evading review,
and as such it is not moot. State ex rel. The Repository v. Unger (1986),
28 Ohio St.3d 418, 420, 28 OBR 472, 474, 504 N.E.2d 37, 39. See, also, Washington
v. Harper (1990), 494 U.S. 210, 218-219, 110 S.Ct. 1028, 1035, 108 L.Ed.2d
178, 196. In any event, this case involves a matter of public or great general
interest and, therefore, the court is vested with the jurisdiction to hear
the appeal, even if the case were moot. In re Appeal of Suspension of Huffer
from Circleville High School (1989), 47 Ohio St.3d 12, 14, 546 N.E.2d 1308,
language in R.C. 5122.14 is used and now adopted in a different context.
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