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21-P-1047 Appeals Court
GUARDIANSHIP OF C.A.
No. 21-P-1047.
Bristol. October 11, 2022. – March 15, 2023.
Present: Sacks, Hand, & Grant, JJ.
Guardian, Incompetent person, Consent to medical treatment. Incompetent Person, Consent to medical treatment. Probate Court, Incompetent person. Mental Health. Practice, Civil, Guardianship proceeding.
Petition for appointment of a guardian filed in the Bristol Division of the Probate and Family Court Department on December 13, 2018.
The case was heard by Richard J. McMahon, J.
Ilse Nehring for C.A. Cassandra Bolanos, Assistant Attorney General, for the Department of Mental Health.
GRANT, J. After a trial, a judge of the Probate and Family
Court found the respondent, C.A., to be an incapacitated person,
and entered a decree and order pursuant to G. L. c. 190B,
§ 5-306, appointing a limited guardian to make medical 2
decisions. The guardian was further authorized to consent to
and monitor the administration of antipsychotic medication to
C.A. according to a treatment plan, pursuant to G. L. c. 190B,
§ 5-306A, and Rogers v. Commissioner of Dep't of Mental Health,
390 Mass. 489, 504 (1983). That treatment plan authorized the
administration of Zyprexa, the medication that C.A. had been
taking, and authorized administration of "alternative
medications" if Zyprexa "no longer benefits" her. C.A. appeals,
arguing that there was insufficient evidence that she is an
incapacitated person and that the judge erred in concluding
that, if C.A. were not incapacitated, her substituted judgment
would be to consent to the administration of antipsychotic
medication. C.A. further argues that, to the extent that the
judge's order authorized the administration of alternative
medications including Invega and Latuda, it was premature. We
conclude that the judge did not have sufficient evidence to
determine that C.A.'s substituted judgment would be to accept
Invega or Latuda, and we vacate so much of the April 30, 2021
decree and order as authorized the administration of those two
drugs. We affirm the remainder of the decree and order.
Background. The Department of Mental Health (DMH)
petitioned the Probate and Family Court for appointment of a
guardian to make medical decisions (among others) and for
substituted judgment (Rogers) authorization to treat C.A. 3
involuntarily with antipsychotic medication in accordance with a
treatment plan. The petition sought approval of a treatment
plan to administer Zyprexa, and also sought authority to
administer the alternative antipsychotic medications. Through
counsel, C.A. objected to the petition.
Based on the evidence at the January 2021 trial, the judge
found as follows. At the time of trial, C.A. was seventy-eight
years old and had a diagnosis of paranoid schizophrenia. For
the previous eight years, C.A. had lived on her own in an
apartment, and was able to meet her own basic self-care needs,
such as bathing and dressing herself, preparing her own meals,
and using public transportation to go grocery shopping and to
medical appointments.
The main issue at trial was, as the judge phrased it,
whether C.A. had "the capacity to self-monitor the
administration of antipsychotic medications."1 The judge
credited the testimony of C.A.'s psychiatrist, Dr. Lucyna
Czarnota-Dolliver, that when she began treating C.A. in 2008,
C.A. was taking Zyprexa for paranoid schizophrenia, and that the
condition was "well-controlled." As of trial, C.A. was taking
1 As discussed below, the judge's consideration of C.A.'s "capacity to self-monitor" encompassed not only her taking the medications, but also her ability to understand their benefits and side effects and to monitor for those side effects. 4
thirty milligrams of Zyprexa Zydis by mouth daily at bedtime.2
Dr. Czarnota-Dolliver testified that Zyprexa may cause side
effects including high glucose levels, high cholesterol,
increased blood pressure, weight gain, and involuntary movements
including tremors. The doctor testified that when she
recommended that C.A. undergo blood tests to monitor for those
conditions, C.A. refused, insisting that she did not have high
blood pressure or high cholesterol. The judge credited the
clinician's affidavit of Dr. Czarnota-Dolliver, which was
admitted in evidence without objection.3 In it, the doctor
opined that C.A. had "limited ability to fully participate in
[an] informed consent decision discussion" and "[d]ifficulties
manipulating the information to make an informed decision"; the
doctor also testified to that opinion.
C.A. testified that she did not have a mental illness.
Asked if she was taking medication, she replied that she was,
2 Zyprexa Zydis is a form of the drug administered orally. As discussed below, Zyprexa also may be administered by intramuscular injection.
3 See G. L. c. 190B, § 5-306A (a) ("When approving and authorizing an antipsychotic treatment plan by order or decree, the court shall consider the testimony or affidavit of a licensed physician . . . regarding such plan"). See also Guardianship of A.R., 99 Mass. App. Ct. 349, 354 (2021) ("A medical certificate affidavit may be used at the time of the final determination of incapacity in the limited circumstances when counsel for the incapacitated person does not object to its use"). 5
but that she did not know who prescribed it. C.A. offered no
explanation for her refusal to be monitored for the possible
side effects of Zyprexa.4
The judge appointed the guardian for the limited purpose of
making medical decisions for C.A. and monitoring "the ongoing
administration of antipsychotic medication and other
medications," and authorized the Rogers treatment plan which
permitted continued administration of Zyprexa orally and by a
different modality, intramuscular injection. The treatment plan
also permitted administration of two alternative antipsychotic
medications: Invega, administered either orally, by
intramuscular injection monthly, or by intramuscular injection
every three months; or Latuda, administered orally.5 The judge
set forth his findings of fact, rationale, and conclusions of
law. C.A. filed a timely notice of appeal.
Discussion. In this context, to meet the standard for
appointment of a guardian with Rogers authority, DMH was
Before trial, C.A.'s counsel had asserted in an affidavit 4
of objection that C.A. objected to the guardianship petition on the grounds that "she does not like the potential for side effects and does not feel the medications are necessary." C.A. did not testify to those reasons at trial.
The judge referred to them as "five (5) alternative 5
medications," counting injectable Zyprexa as a different drug from Zyprexa taken orally, and counting separately each of the three ways Invega could be administered. We consider them to be two alternative antipsychotic medications: Invega and Latuda. 6
required to prove by a preponderance of the evidence that C.A.
was an incapacitated person within the meaning of G. L. c. 190B,
§§ 5-101 (9), 5-306, and that, if she were not incapacitated,
C.A. would choose to be treated by antipsychotic medication.
See Guardianship of A.R., 99 Mass. App. Ct. 349, 353, 358
(2021); G. L. c. 190B, § 5-306A. We review the judge's ruling
for abuse of discretion or other error of law. See Guardianship
of Linda, 401 Mass. 783, 786-787 (1988).
1. Incapacitated person. C.A. argues that the evidence
was insufficient to support the judge's finding that she was an
incapacitated person. Specifically, C.A. contends that the
judge (1) applied the wrong legal standard by conflating the
statutory definition of an incapacitated person with the common-
law test for competency to give informed consent; (2) improperly
relied on the doctor's testimony that C.A. had refused to
undergo blood testing to monitor for the side effects of
Zyprexa; (3) should have found, based on evidence that C.A. was
able to live independently and care for herself, including by
taking Zyprexa, that C.A. was not an incapacitated person; and
(4) improperly considered facts not admitted in evidence. We
consider each of those issues in turn.
a. Definition of incapacitated person. As defined in
G. L. c. 190B, § 5-101 (9), an "incapacitated person" is 7
"an individual who for reasons other than advanced age or minority, has a clinically diagnosed condition that results in an inability to receive and evaluate information or make or communicate decisions to such an extent that the individual lacks the ability to meet essential requirements for physical health, safety, or self-care, even with appropriate technological assistance."
In concluding that C.A. was an incapacitated person, the judge
cited to that statute and closely paraphrased that definition.
Simply because the judge sometimes used the words "competency"
and "capacity," which was the terminology in cases that predate
the adoption of § 5-101 (9), see St. 2008, c. 521, § 9, does not
mean that the judge applied the incorrect definition of an
incapacitated person.6
b. Refusal to undergo blood testing. C.A. argues that the
judge improperly relied on C.A.'s refusal to undergo blood
testing as the basis of his finding that C.A. was an
incapacitated person. The record shows that the judge did not
rely solely on C.A.'s refusal to undergo blood testing, but also
on her inability to have a meaningful discussion with her doctor
on the subject. The judge credited information from Dr.
Czarnota-Dolliver's affidavit and testimony that C.A. was unable
6 C.A. cites to the District Court Standards of Judicial Practice: Civil Commitment and Authorization of Medical Treatment for Mental Illness (rev. Apr. 2019), which pertain to commitment proceedings pursuant to G. L. c. 123. Those standards are not pertinent here, and the judge did not cite to them. 8
to participate in a discussion about the need to monitor her
blood for side effects of Zyprexa in order to make an informed
decision whether to continue that medication. The judge also
credited Dr. Czarnota-Dolliver's testimony that under her care
C.A. had been taking Zyprexa successfully since at least 2008.
The evidence of Dr. Czarnota-Dolliver's opinion that C.A. was
unable to fully participate in the discussion about testing for
side effects of Zyprexa in order to make an informed decision on
that issue allowed the judge to find that C.A. was an
incapacitated person within the meaning of G. L. c. 190B, § 5-
101 (9), for the limited purpose of making medical decisions.
See Guardianship of A.R., 99 Mass. App. Ct. at 356-357 (treating
psychiatrist's testimony sufficed to show that schizophrenic
person was incapacitated).
Also in evidence was C.A.'s own testimony, in which she
denied that she had any mental illness. Asked about her
medications, C.A. said, "I take medication. They changed it.
. . . I don't know who prescribed it." That contrasted with
Dr. Czarnota-Dolliver's testimony that she had been C.A.'s
treating psychiatrist since 2008, seeing C.A. about every two
months, and that since then C.A. had been successfully treated
with Zyprexa. The judge had a first-hand view of C.A.'s
apparent inability to understand and appreciate the nature of
her mental illness and the possible side effects of her 9
prescribed medication.7 The judge's assessment of both
witnesses' testimony is entitled to deference. See Guardianship
of Jackson, 61 Mass. App. Ct. 768, 774 (2004).
Put in terms of the three—part definition of "incapacitated
person" set out in G. L. c. 190B, § 5-101 (9), (1) C.A. had a
"clinically diagnosed condition"; (2) that condition resulted in
her "inability to receive and evaluate information" regarding
her mental health treatment, its potential side effects
including high blood pressure and high cholesterol, and the
appropriate monitoring for such side effects; and (3) therefore
C.A. "lack[ed] the ability to meet essential requirements for
physical health," such as engaging in and cooperating with such
monitoring. The appointment of a limited guardian for the
purpose of making medical decisions was warranted.
c. Incapacitation despite living independently. Contrary
to C.A.'s argument, her ability to live independently and attend
to most of her own needs, including taking her Zyprexa, did not
preclude the judge from finding that she was an incapacitated
person within the meaning of G. L. c. 190B, § 5-101 (9), and
7 The transcript shows that while Dr. Czarnota-Dolliver was testifying about C.A.'s schizophrenia diagnosis and the side effects that her medication may cause, C.A. interrupted repeatedly, stating that she did not have schizophrenia or high blood sugar, until the judge cautioned C.A.'s counsel about the interruptions. 10
appointing a limited guardian. Simply because C.A. could
perform many of the tasks of everyday living did not preclude
the judge from finding that she was incapacitated from making
decisions about her medical treatment, including treatment with
antipsychotic medication. "A judge may adjudicate a person to
be competent to make some decisions, but not others" (quotation
and citation omitted). Guardianship of Roe, 411 Mass. 666, 670
(1992).
The judge found that "[w]hile [C.A.] shows great strength
in managing her daily routine and self-care . . . she lacks the
ability to understand that the medication she takes is for a
mental health condition," and as a result "is unable to manage
all the tasks required for keeping up her anti-psychotic
medication." Those tasks, as Dr. Czarnota-Dolliver explained,
included monitoring for the side effects of Zyprexa.
d. Facts not in evidence. Finally, as to C.A.'s claims
that the judge made findings based on information not in
evidence, most of them lack merit. Contrary to C.A.'s argument,
the judge's finding that paranoid schizophrenia "is a disorder
that affects a person's ability to think clearly" was based on
Dr. Czarnota-Dolliver's testimony that C.A. had "fog
disorganization" and "difficulty processing information."
Similarly, the judge's finding that C.A. had been refusing
treatment necessary to monitor her blood pressure was derived 11
from Dr. Czarnota-Dolliver's testimony about C.A.'s inability to
engage in a discussion about the need for her to undergo testing
to monitor for the side effects of Zyprexa.
As C.A. points out, the judge made findings about certain
possible side effects of antipsychotic medications that are not
supported by the record before us.8 In addition, the judge made
findings that C.A. had had prior psychiatric hospitalizations,
but testimony about those hospitalizations had been stricken on
C.A.'s hearsay objections. Those errors did not materially
contribute to the judge's ultimate conclusions that DMH had met
its burden (1) for appointment of a limited guardian, based on
evidence including Dr. Czarnota-Dolliver's testimony about
C.A.'s inability to engage in a meaningful discussion about
monitoring for the side effects of Zyprexa; and (2) for the
entry of a Rogers order, based in part on Dr. Czarnota-
Dolliver's opinion that if C.A. did not continue taking
antipsychotic medication C.A. would decompensate and require
psychiatric hospitalization in the future. See Guardianship of
A.R., 99 Mass. App. Ct. at 356-357 (even without considering
8 Those side effects mentioned by the judge include low blood pressure, cessation of menses, changes in skin pigmentation, eye problems, and toxicity to the heart, liver, or bone marrow. The judge did hear testimony from Dr. Czarnota- Dolliver that a different antipsychotic medication that C.A. had taken previously had caused C.A. to suffer permanently from the side effect of tardive dyskinesia. That medication was not among those listed in the treatment plan. 12
contested exhibits, record contained sufficient evidence to
support limited guardianship).
2. Substituted judgment. C.A. argues that the judge erred
in determining pursuant to G. L. c. 190B, § 5-306A, that if C.A.
were not incapacitated, her substituted judgment would be to
accept the administration of antipsychotic medication. She
contends that the judge's substituted judgment determination was
"premature" because it was "predicated on hypotheticals" that
she would refuse Zyprexa or that it would no longer benefit her.
The relevant factors a judge must consider in making a
substituted judgment determination include "(1) a person's
expressed preferences; (2) h[er] religious convictions; (3) the
impact on [her] family; (4) the probability of adverse side
effects from treatment; (5) h[er] prognosis with treatment; and
(6) h[er] prognosis without treatment." Guardianship of A.R.,
99 Mass. App. Ct. at 358. See Guardianship of Roe, 383 Mass.
415, 444 (1981). Because the incapacitated person's
circumstances may change, a substituted judgment treatment order
authorizing the administration of antipsychotic medication must
contain a termination date and provisions for monitoring by the
guardian (or other suitable person) and periodic review at least
annually by a judge.9 See G. L. c. 190B, § 5-306A (b), (c). The
9 We note that the treatment plan at issue has expired. As a result, C.A.'s appellate challenge to the substituted judgment 13
treatment plan should clearly describe the authorized treatment
and dosage ranges, any procedures or treatments that may be used
to counteract potential side effects, and reasonably foreseeable
alternative treatments.
In reviewing the judge's determination that C.A. would, if
not incapacitated, consent to treatment by antipsychotic
medication, "we must consider whether the facts on the record
support the proposition that [C.A.] [her]self would have made
the decision if [s]he were competent" (quotation and citation
omitted). Guardianship of Brandon, 424 Mass. 482, 488 (1997).
See G. L. c. 190B, § 1-109. We accept the judge's findings of
fact unless clearly erroneous, but review de novo the legal
conclusions to be drawn from those facts. See Guardianship of
Brandon, supra.
a. Zyprexa. Applying the factors set forth above, the
judge had ample basis to conclude that C.A., if not
incapacitated, would consent to taking the antipsychotic
medication Zyprexa daily as set forth in the proposed treatment
plan. C.A. had been voluntarily taking Zyprexa in its orally
administered form, Zyprexa Zydis, by ingesting it daily for at
least the past twelve years. DMH's filing of the petition was
component of the decree is now moot. See Guardianship of A.R., 99 Mass. App. Ct. at 357. Because the issue of a treatment plan is likely to reoccur in this case, we nevertheless consider whether it was properly imposed. See id. 14
precipitated by C.A.'s inability to engage in a discussion with
Dr. Czarnota-Dolliver about the need to undergo blood tests to
monitor for the side effects of Zyprexa; shortly before trial,
C.A. refused to undergo those basic blood tests. C.A. testified
that she did not believe she was mentally ill and did not know
who had prescribed the medication she was taking; that
contrasted with evidence that she had been seeing Dr. Czarnota-
Dolliver for a dozen years during which her paranoid
schizophrenia was successfully treated with Zyprexa. C.A.
expressed no religious beliefs in opposition to being treated
with Zyprexa, and her family was not involved in her care and
did not oppose its use. Crediting Dr. Czarnota-Dolliver's
opinion, the judge concluded that C.A.'s prognosis with
antipsychotic medication was "good[,] with ability to remain
safely in a community setting," while her prognosis without that
medication was "poor[,] with decompensation and inpatient
hospitalization."
i. Absence of evidence that C.A. refused Zyprexa. Just
because C.A. had not yet refused to take Zyprexa did not
preclude the judge from exercising his discretion to approve the
treatment plan authorizing administration of Zyprexa in the
event that she did.10 In Guardianship of Linda, 401 Mass. at
10Dr. Czarnota-Dolliver testified without objection that C.A. "never refused [Zyprexa] until recently. She was always 15
784-785, the respondent, like C.A., suffered from paranoid
schizophrenia, was living independently, and had been accepting
treatment with antipsychotic drugs but did not understand the
nature of the drugs. Anticipating that the respondent might
start refusing to take the drugs, DMH sought an order that would
permit forcible medication if she did so. See id. at 785.
Construing a prior statute, G. L. c. 201, § 6, repealed by St.
2008, c. 521, § 21, a Probate and Family Court judge denied
DMH's request to give the respondent's guardian Rogers authority
to require the respondent to accept antipsychotic drugs. See
Guardianship of Linda, supra at 784, 786. The Supreme Judicial
Court held that the judge acted within his discretion in ruling
that the hypothetical possibility that the respondent might in
the future refuse to take antipsychotic drugs was not a
sufficient basis to compel treatment with the drugs. See id. at
786-787.
More than two decades after Guardianship of Linda, the
Legislature adopted the Massachusetts Uniform Probate Code,
including the statutes at issue here, G. L. c. 190B,
§§ 5-101 (9), 5-306, and 5-306A. See St. 2008, c. 521, § 9,
compliant, but this week, I got a phone call that she started refusing." The judge did not find whether he credited that testimony, and in fact found that C.A. "is currently accepting Zyprexa Zydis [thirty] mgs at bedtime." Because the judge did not explicitly credit the evidence that C.A. had begun refusing Zyprexa, we do not consider it. 16
eff. July 1, 2009. That was a "substantial revision" to
Massachusetts' "statutory guardianship law," more precisely
defining incapacitation and establishing "more elaborate
reporting requirements for guardians." Guardianship of D.C.,
479 Mass. 516, 522 (2018). One purpose underlying the adoption
of the new guardianship statutes was "the ability to create a
limited guardianship . . . intended to maximize the liberty and
autonomy of a person subject to guardianship." Guardianship of
B.V.G., 474 Mass. 315, 323 (2016). General Laws c. 190B,
§ 5-309 (a), furthers that purpose by requiring that the
guardian "shall exercise authority only as necessitated by the
incapacitated person's mental and adaptive limitations, and, to
the extent possible, shall encourage the incapacitated person to
participate in decisions, to act on h[er] own behalf, and to
develop or regain the capacity to manage personal affairs." If
the condition changes so that the incapacitated person becomes
"capable of exercising rights previously limited," the guardian
"shall immediately notify the court." G. L. c. 190B, § 5-309
(a).
In Guardianship of Linda, 401 Mass. at 787, the court noted
that "[i]t is possible that in another case the evidence could
be such that the judge might appropriately determine
prospectively that antipsychotic drugs might be administered
even if the ward refused the treatment." This is just such a 17
case. From the evidence of C.A.'s apparent confusion about her
medication, the judge could infer that C.A. was at risk of
stopping Zyprexa, which would result in the decompensation that
Dr. Czarnota-Dolliver predicted. The judge did not have to wait
for those events to occur before appointing the Rogers guardian
with authority to consent to treating C.A. with Zyprexa. That
is particularly so because G. L. c. 190B, § 5-309 (a), required
C.A.'s guardian to encourage C.A. to participate in decisions
and to develop the capacity to manage her own affairs, and
imposed on the guardian an affirmative duty to inform the judge
immediately if C.A. became capable of doing so. We conclude
that the judge did not abuse his discretion in approving the
Rogers treatment plan permitting the guardian, in the event that
C.A. refused Zyprexa, to consent on C.A.'s behalf to continuing
to take it. By giving the guardian that authority, the judge
furthered the statutory purpose of "encourag[ing] the
development of maximum self-reliance and independence of
[C.A.]," G. L. c. 190B, § 5-306 (a). See Guardianship of
B.V.G., 474 Mass. at 322-323. Permitting the guardian to
consent on C.A.'s behalf to Zyprexa, the medication she had been
taking for years, allowed C.A. to continue to live independently
rather than face the alternative, if she stopped taking it, that
she would decompensate and face the prospect of hospitalization. 18
ii. Administration of Zyprexa by intramuscular injection.
Nor do we discern an error of law or abuse of discretion in the
judge's ruling to permit administration of Zyprexa by the
alternative modality of intramuscular injection. In describing
the benefits and risks of the drug, Dr. Czarnota-Dolliver
referred to it as "Zyprexa," without specifying the orally
administered form, "Zyprexa Zydis," and from that the judge
could infer that essentially the same benefits and risks applied
to the drug taken either way.11 Implicit in the judge's
conclusion that C.A.'s substituted judgment would be to consent
to administration of Zyprexa orally was his conclusion that
C.A.'s substituted judgment would be to consent to Zyprexa by a
different modality, intramuscular injection. See Guardianship
of Brandon, 424 Mass. at 489 ("implicit" in judge's finding that
patient's substituted judgment would be to consent to treatment
with electronic shock device was conclusion that, if
effectiveness diminished, patient would consent to treatment
with stronger such device). Cf. Guardianship of L.H., 84 Mass.
App. Ct. 711, 716-717 (2014) (judge properly allowed
modification of treatment plan to permit administration of drug
by injection rather than orally). We do not read the
11C.A. does not identify how any of the criteria set forth in Guardianship of A.R., 99 Mass. App. Ct. at 358, would apply differently if Zyprexa were administered by intramuscular injection rather than orally. 19
substituted judgment standard set forth in G. L. c. 190B,
§ 5-306A, to be so rigid as to require a separate substituted
judgment determination before a judge may authorize treatment
with the same drug by means of a different modality. See
Guardianship of Weedon, 409 Mass. 196, 202 (1991) ("it is
essential that the Probate Court maintain its flexibility and
its consequent ability to respond to the individual needs of
patients").
Dr. Czarnota-Dolliver explained that she did not prescribe
medications to be administered by injection on an outpatient
basis, so that alternative would be necessary only if C.A.
refused to take Zyprexa orally, decompensated, and was admitted
to a psychiatric hospital. Just because those events had not
yet occurred did not preclude the judge from exercising his
discretion to approve the treatment plan authorizing Zyprexa to
be administered by the alternative modality of intramuscular
injection. Permitting the guardian to consent to continuing
C.A.'s treatment with Zyprexa administered by intramuscular
injection would minimize the risk that she would decompensate,
and prevent a lapse in treatment. We discern no abuse of
discretion in the judge's interpreting G. L. c. 190B, § 5-306A,
to permit him to authorize the treatment plan including
administration of Zyprexa to C.A. by intramuscular injection. 20
b. Alternative antipsychotic medications. C.A. argues
that the judge erred in authorizing the treatment plan
permitting the guardian to consent to the administration of the
alternative antipsychotic medications, Invega and Latuda. We
conclude that because the judge did not hear evidence of those
medications' side effects or effectiveness, he did not have a
sufficient basis to determine that C.A.'s substituted judgment
would be to accept either of those medications.
As to those two alternative medications, Dr. Czarnota-
Dolliver testified that "if there's a problem with one
medication, then we try another," and "let's say if she were not
doing well on Zyprexa and then I gave her Invega and she would
develop some kind of allergic reaction, then we would have
another option [Latuda] to choose from." But the judge did not
hear evidence as to what side effects Invega or Latuda,
specifically, might cause, or those drugs' effectiveness. Thus,
as to Invega and Latuda, the judge did not perform the parts of
the substituted judgment analysis that required him to consider
"the probability of adverse side effects from treatment," and
C.A.'s "prognosis with treatment" by those drugs. Guardianship
of A.R., 99 Mass. App. Ct. at 358.
DMH argues that Probate and Family Court Standing Order 4-
11 (1) (c) (2011) provides DMH with the authority to offer
hypothetical alternative antipsychotic medications listed in the 21
treatment plan. This argument is unavailing, as that standing
order applies only to "uncontested" motions to extend existing
Rogers treatment plans. At issue here was an initial Rogers
petition, which C.A. did contest. In those circumstances, the
judge was required to conduct a substituted judgment
determination for each of the proposed alternative medications,
Invega and Latuda.
We vacate so much of the treatment plan order as authorized
the administration of Invega or Latuda as alternative
medications.
Conclusion. So much of the decree and order dated April
30, 2021, as authorizes the treatment of C.A. with Invega or
Latuda is vacated. In all other respects the decree and order
is affirmed.
So ordered.