Guardianship of L.H.

3 N.E.3d 92, 84 Mass. App. Ct. 711, 2014 WL 241836, 2014 Mass. App. LEXIS 5

• Court: Massachusetts Appeals Court
• Decided: January 24, 2014
• Docket: No. 11-P-1510
• Status: Published

Opinions

Berry, J.

This case involves two substituted judgment proceedings on petitions filed, following the precedent of Rogers v. Commissioner of the Dept. of Mental Health, 390 Mass. 489 (1983), and cases decided in its wake, in respect to the administration of antipsychotic medications to L.H. L.H. appeals from a decree and findings of the Probate and Family Court that she was not competent to make medical decisions and would benefit from a proposed treatment plan to use the antipsychotic drug Risperdal, and that she would consent to use of that drug were she competent. L.H. also appeals from the judge’s subsequent allowance of a motion to reinstate and to modify the treatment plan to allow for the administration by injection of Risperdal. The two appeals were consolidated here.

L.H. argues on appeal that there was insufficient evidence that the administration of antipsychotic medication was appropriate. In addition, L.H. argues that her trial counsel rendered ineffective assistance. We affirm.

For the reasons addressed in part 1, we conclude that the evidence in these substituted judgment proceedings and the probate judge’s findings established by a preponderance that L.H. was in need of treatment with antipsychotic drugs. See G. L. c. 190B, § 5-306A. See generally Guardianship of Erma, 459 Mass. 801, 802 n.2 (2011) (discussing substituted judgment in context of involuntary administration of antipsychotic drugs). For the reasons addressed in part 2, we decline to reach the ineffective assistance of counsel claims in these direct appeals. First, such claims are not fully developed on this trial record and were not further developed in a motion for new trial. Second, based on the extant record that underlies the direct appeals, nothing has been made to appear that the standard of prejudice would be met in this particular case. A showing of prejudice is the governing standard for ineffective assistance claims in civil cases involving fundamental liberty interests in the administration of antipsychotic medication, such as presented in this case. See generally Poe v. Sex Offender Registry Bd., 456 Mass. 801, 813 (2010), quoting from Commonwealth v. Mahar, 442 Mass. 11, 15 (2004) (prejudice in ineffectiveness claims is “a ‘reasonable probability’ that ‘but for counsel’s unprofessional errors, the result of the proceeding would have been different’ ”).

1. Procedural background and trial evidence. At the time these proceedings commenced, L.H., a fifty-seven year old woman, was living at the Lowell Health Care Center (LHCC), where she had resided since being admitted in October, 2009, having previously been a resident in a nursing home in New York. In addition to mental health issues, L.H. suffers from multiple sclerosis (MS), among other physical ailments, and requires a wheelchair. Her medical history included prior treatment with antipsychotic medication. In past times, L.H. had been homeless.

On November 30, 2009, LHCC staff members Mark O’Flaherty and John Handren (collectively, petitioners) filed a petition in the Probate and Family Court seeking appointment of a guardian for L.H. pursuant to G. L. c. 190B, § 5-303. The petition later was amended to include a proposed antipsychotic treatment plan. Because L.H. challenges the commencement of the proceedings in the first instance, we note that Dr. Anthony Joseph, a psychiatrist, completed and signed the statutorily required medical certificates and supporting documentation, all of which were filed with the court as the proceedings began. These documents, including the medical affidavit and treatment plan, detail L.H.’s physical and mental condition at the time the proceedings were commenced and, we conclude, justified the petition undertaken.¹

A hearing was held on August 30, 2010. The witnesses included Dr. Joseph of LHCC; Dr. David Rosmarin, an independent forensic psychiatrist retained by L.H.’s court-appointed counsel; L.H.; and her court-appointed temporary guardian.

Dr. Joseph provided a psychiatric diagnosis of borderline personality disorder, mood disorder, anxiety, and excessive compulsiveness, among other mental ailments. He noted that behavioral modification treatment had been ineffective. This psychiatrist testified that treatment with an antipsychotic medicine was proposed to decrease L.H.’s agitation and paranoia so that ensuing behavioral treatment could become more effective, with the goal of returning L.H. to a supportive living environment in New York. While acknowledging that the proposed antipsychotic medicine, Risperdal, had side effects, the psychiatrist stated his medical opinion that it would be the preferred drug for L.H., and that the medication’s side effects relative to its over-all effectiveness were within tolerable ranges. Specifically, the psychiatrist opined on this point as follows:

“The thing with Risperdal, the reason why I choose it is I’ve observed that in some people it can work very well at a very low dose and you don’t get any or many side effects, which I think is the main attraction here. ... So my first hope would be to try and treat the agitation and the paranoia with something that essentially has no side effects or actually has no side effects. So I see that potential in Risperdal. That’s the logic.”

Regarding L.H.’s prognosis if left untreated, Dr. Joseph predieted that she would “continue the way she is,” and added that he “would be very concerned about what kind of facility she would end up in in New York, how long they would keep her.”

The second psychiatric expert witness, Dr. Rosmarin, who had been retained by counsel for L.H., also stated medical opinions that tended to support the position that L.H. would benefit from the proposed treatment plan. Dr. Rosmarin had examined L.H. at length, and had spoken with LHCC staff in detail. This psychiatrist diagnosed L.H. as having a personality disorder with obsessive compulsive symptoms and suggested she could benefit from treatment with antipsychotic medicine, although at a lower dose than was proposed: “This lady needs very careful management but with a very careful behavioral plan in concert possibly with two kinds of medications. One would be a very low dose of antipsychotic. I don’t have an objection to that.”

L.H. testified in opposition to the treatment plan and to the use of antipsychotic medications. L.H. acknowledged that she had been homeless, suffers from MS, requires the use of a wheelchair, and needs physical assistance in her living situation. However, she did not believe guardianship was warranted, and she protested the use of antipsychotic drugs. She stated that when she previously had been treated with the proposed anti-psychotic Risperdal, she had experienced severe side effects and “would rather be dead than go on [Risperdal] again.”

The guardian testified he had met with L.H., consulted with LHCC staff, and spoken with L.H.’s sister on three or four occasions. Based on those discussions, the guardian stated, “I think she needs some supervision and she needs some medication.”

At the conclusion of the hearing, the judge found “that the testimony of the two physicians that have been proffered to the court today are really not diametrically opposed. They both appear to me to agree that treatment is needed, continuation of the guardianship is warranted and that the treatment plan as proposed, actually by both physicians, in my opinion, involves both medical treatment, a psychotropic drug treatment, together with a behavioral treatment.”

In his findings of fact, the judge acknowledged L.H.’s stated preference against the proposed antipsychotic medication, but found, listing the Rogers decisional factors,² including but not limited to possible side effects, “that if [L.H.] could rationally evaluate the side effectfs] described . . . , she would choose the Treatment Plan subject to the explanation that the use of the drugs would be properly managed and that . . . efforts [would be made to] continue to monitor the dosage within the lowest optimum range.”³

Accordingly, the judge authorized the proposed treatment plan (with modifications proposed by Dr. Rosmarin and accepted by Dr. Joseph) and appointed a permanent guardian and Rogers monitor for L.H. The judge scheduled the treatment plan for review on December 6, 2010, the date the order was set to expire. The plan expired on schedule on December 6, 2010.

On September 1, 2011, staff of LHCC, as the petitioners, filed a motion in the Probate and Family Court to reinstate the Rogers order and to modify it to allow an injectable form of the antipsychotic medication to be administered because L.H. was refusing to take Risperdal orally. The testimony at this hearing reflected L.H.’s persistent mental disabilities. Dr. Joseph provided a diagnosis similar to his medical opinion at the August, 2010, hearing, i.e., that L.H. suffered from “atypical psychosis” with symptoms manifested as “paranoia, agitation, [and] dysphoria .... Poor insight and judgment around the treatment of her mental illness.”

Dr. Joseph also supported the modification of the treatment plan modification to include injectable medication, stating, “Most likely she would become much less paranoid, much less agitated and would have a much improved quality of life in terms of her sense of well being and satisfaction.” The prognosis without antipsychotic medication was as follows: “Without treatment, she would continue to be agitated, dysphoric with a very impaired quality of life and . . . it’s very likely she would end up in a chronic state psychiatric facility, either here or in New York.”

As she had at the August, 2010, hearing, L.H. strenuously objected to antipsychotic treatment, stating, “I was refusing to take the Risperdal because of the unbearable side effects. . . . I’d rather be dead than go through that.”

The judge allowed the motion to reinstate the Rogers order and to continue the treatment plan, and to modify the order for treatment to allow for an injectable form of drug administration.

As previously noted, this appeal concerns both the petition for guardianship and the order for administration of antipsychotic medication, as well as the reinstatement order with the modification for administration of the drug by injection.⁴ In arriving at the substituted judgment decision, the judge carefully weighed the applicable factors set forth in Rogers, see notes 2 and 3, supra, including (1) L.H.’s expressed preferences to decline treatment with Risperdal; (2) consideration of L.H.’s family, including that the guardian, who endorsed the plan, had spoken with L.H.’s sister; (3) the balancing of adverse side effects against the benefits of treatment; (4) the prognosis without treatment; and (5) the prognosis with treatment. The judge also considered other relevant factors, including L.H.’s physical condition and living arrangement and the goal of greater physical independence. See Rogers, 390 Mass, at 505-507. Based on our review of the evidence — a great part of which we have detailed supra — with acknowledgment of the judge’s convincingly formulated findings and analysis concerning the treatment plan after having heard all the evidence and seeing L.H. testify in two hearings, we agree that the guardianship and the treatment with antipsychotic medication were appropriate, and if competent, L.H. would consent thereto.

2. Ineffective assistance of counsel. In this appeal, L.H. also contends that she received ineffective assistance of counsel. She raises a number of flaws in counsel’s performance, including that her attorney did not adequately cross-examine Dr. Joseph (and asked questions in such an undirected manner that Dr. Joseph added information adverse to L.H.’s position); did not present Dr. Rosmarin, her psychiatric expert, in a persuasive way; allowed Dr. Rosmarin to state opinions that were not consistent with her position against the administration of antipsychotic drugs; and presented a weak closing argument in which counsel — although advocating the position that L.H. would benefit from behavioral (not drug) treatment — seemingly undermined that position by conceding that L.H. needed anti-psychotic medication, although in a lesser dose than Dr. Joseph had recommended. (As noted, the modified dosage was incorporated in the judge’s findings and decree.)

We bear in mind Supreme Judicial Court precedent that patients faced with the administration of antipsychotic drugs under a substituted judgment standard are entitled to the effective assistance of counsel. “[I]n a proceeding that involves a person’s liberty or a fundamental liberty interest, in which a person has a right to appointed counsel, from whatever source,[⁵] the person is entitled to the effective assistance of counsel whether counsel is appointed or retained.” Commonwealth v. Patton, 458 Mass. 119, 128 (2010). We bear in mind that issues concerning the administration of antipsychotic medications present fundamental liberty interests. “[A] competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment.” Cruzan v. Director, Mo. Dept. of Health, 497 U.S. 261, 278 (1990). “The right to refuse treatment or to discontinue treatment is based on a person’s strong interest in being free from nonconsensual invasions of the person’s bodily integrity.” Guardianship of Doe, 411 Mass. 512, 517, cert. denied, 503 U.S. 950 (1992). However, even accepting these principles, we do not deem it appropriate to reach and to try to resolve the ineffective assistance claim posed by L.H. on the limited record that underlies these direct appeals.

First, the trial record alone — absent further development by a new trial motion — does not provide us the necessary background to evaluate the attorney’s tactical choices, nor his interaction with L.H., the client. On the one hand, criticism of counsel’s performance is warranted, including his weak direct and cross-examination practice and an ambivalent closing argument. But then, we do not have before us what rationale drove counsel’s trial strategy, nor how that strategic approach was affected by L.H.’s psychiatric expert, who seemed to share the opinion (with the petitioners’ expert) that L.H. would benefit from the administration of Risperdal. Nor do we have before us information concerning counsel’s dealings with an incapacitated client, and what strategic choices may have been considered by counsel in light of what would be the tone and the substance of the testimony. For example, was there consideration by counsel that to allow Dr. Rosmarin to speak about a reduced dosage of Risperdal might be a fail-back position to avoid the larger dosage advocated by Dr. Joseph? Evidence that may contradict an incapacitated person’s testimony that she is adverse to any medication does not per se give rise to ineffective assistance of counsel or (as discussed infra) prejudice in the ultimate judgment. In short, absent what might have been probed in a new trial motion, we cannot discern on this record alone what tactical choices and what client issues may have factored into counsel’s performance.

As stated in Patton, 458 Mass, at 128, in cases such as this, where the record is inchoate, the preferred mode to give backdrop for appellate review might have been by a motion for new trial, which, if denied, could be joined with a direct appeal. Such a new trial motion was not filed or adjudicated in this case. As the court wrote in Patton:

“The principle that emerges from these cases is that in a proceeding that involves a person’s liberty or a fundamental liberty interest, in which a person has a right to appointed counsel, from whatever source, the person is entitled to the effective assistance of counsel whether counsel is appointed or retained. In addition, the outcome of that proceeding may, but need not, be attacked collaterally through a claim of ineffective assistance of counsel in a motion for a new trial.”

Ibid 6

Second, and more significantly as to why we decline to reach the ineffective assistance of counsel challenge in these direct appeals, is that what does exist in the record does not reflect that a different result would have obtained, and that there was prejudice in the findings and orders. In this respect, although Supreme Judicial Court precedent looks to the Saferian criminal standard in assessing ineffective assistance of counsel in a civil case involving fundamental privacy issues and the administration of antipsychotic drugs in a Rogers context, the Saferian standard is modified to focus on prejudice. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The Supreme Judicial Court has so stated as follows:

“In Care & Protection of Georgette, 439 Mass. 28, 33 n.7 (2003), we recognized that the language ‘otherwise available, substantial ground of defense’ is ‘criminal law terminology that does not precisely fit’ civil cases in which there is a statutory right to counsel. In civil cases, we instead ‘prefer to use the term “prejudice.” ’ Id. We have defined prejudice in ineffectiveness claims as ‘a “reasonable probability” that “but for counsel’s unprofessional errors, the result of the proceeding would have been different.” ’ Commonwealth v. Mahar, 442 Mass, [at 15], quoting Strickland v. Washington, 466 U.S. 668, 694 (1984).”

Poe, 456 Mass, at 812-813.

In this case, even given counsel’s less-than-stellar performance, the evidence and the record of the proceedings, in our opinion, does not come close to meeting this legal standard of prejudice. To the contrary, taking the record as is, there is much strength in the evidence that supports the judge’s decisions on substituted judgment to administer antipsychotic medications.⁷,⁸,⁹

Decree entered September 3, 2010, affirmed.

Order reinstating and expanding Rogers order, entered September 9, 2011, affirmed.

1 L.H.’s argument that the petition was not warranted at the outset is countered by the medical certificate and the related documents. The petitioners state in these documents that they seek appointment of a guardian because “[L.H.] is unable to participate in Health Care decisions and is currently refusing all care which will cause declining health.” Dr. Joseph stated L.H. is “very unaware of her situation and mental illness, rejects care, [and has] poor insight and judgment.” He stated in his subsequent documentation that she suffers from “multiple sclerosis, atypical psychosis, [and] borderline personality disorder” and manifests symptoms such as “agitation, poor compliance with medical care, paranoia, believing that others lie about her and wish to hurt her.” He explained that L.H. is an inpatient in a “neurobehavioral unit” who was referred to LHCC by the State of New York “as facilities in that state [are] unable to meet her intensive behavioral needs.” He stated that antipsychotic medication is necessary to “reduce her agitation and paranoia, and improve her quality of life.”

2 Under Rogers, at least six factors must be considered by a judge in arriving at the substituted judgment decision:

“First, the judge must examine the patient’s expressed preferences regarding treatment. If made while competent, such a preference is entitled to great weight unless the judge finds that the patient would have changed his opinion after reflection or in altered circumstances. . . . Second, the judge must evaluate the strength of the incompetent patient’s religious convictions, to the extent that they may contribute to his refusal of treatment. . . . Third, the impact of the decision on the ward’s family must be considered. . . . Fourth, the probability of adverse side effects must be considered. . . . Fifth, the prognosis without treatment is relevant to the substituted judgment decision. . . . Sixth, the prognosis with treatment must be examined. . . . Finally, the judge may review any other factors which appear relevant.”

Rogers, 390 Mass, at 505-506 (citations omitted).

3 The judge’s comprehensive substituted judgment analysis and findings track the Rogers factors. That is, the judge, in pertinent part, found as follows:

“The proposed Treatment Plan is presented in good faith by Anthony Joseph, M.D. and is for the purpose of treating mental illness and not for administrative convenience. . . . [L.H.’s] preference regarding the use of anti-psychotic medication has been to reject it. This expression was made during her testimony. . . . [L.H.’s] religious beliefs do not preclude the use of the proposed treatment. . . . [L.H.’s] sister, and her family are supportive of her treatment. . . . Prognosis with medication: good. Medication should control agitation and provide her comfort. ... Prognosis without medication: Poor. Deterioration over time.”

L.H. did not voice any religious objections to the drug or reference the opinions of kin, both of which are relevant factors in an analysis under Rogers.

4 The second appeal was filed on September 23, 2011. The plan, as noted, expired on December 6, 2010. However, given the reinstatement of the treatment, the appeal is not moot. See generally Guardianship of Erma, 459 Mass, at 804-805.

5 The right to counsel in guardianship proceedings is set forth in G. L. c. 190B, § 5-306A(a), inserted by St. 2008, c. 521, § 9, which provides in part:

“No guardian . . . of a minor or an incapacitated person shall have the authority to consent to treatment for which substituted judgment determination may be required, provided that the court shall authorize such treatment [upon specific findings]. The court shall not authorize such treatment plan except after a hearing for the purpose of which counsel shall be provided for any indigent minor or incapacitated person. ...”

6 We note that even where successor or appellate counsel declines to seek a new trial simultaneously with the filing of a notice of appeal, under G. L. c. 190B, § 5-306A(c), as amended by St. 2012, c. 140, §§ 38, 39, “[e]ach order authorizing a treatment plan pursuant to this section shall provide for periodic review at least annually to determine whether the minor’s or incapacitated person’s condition and circumstances have substantially changed such that, if competent, the minor or incapacitated person would no longer consent to the treatment authorized therein.” This is not to suggest that ineffective assistance of counsel is automatically mitigated by post hoc review. Such review adds another safeguard against the unwarranted administration of antipsychotic drugs where ineffective assistance of counsel claims in the offing are not patent on the record compiled for direct appeal, and where no new trial motion is filed.

7 The petitioners, the staff at LHCC, did not file an appellate brief, leaving only, as a party brief, that filed by L.H.

8 We acknowledge the joint amicus brief of the Mental Health Legal Advisors Committee, the Disability Law Center, and the Center for Public Representation. The amici urge that we use this case to announce standards to test ineffective assistance of counsel in a case involving the administration of anti-psychotic medications. The standards proposed by the amici include performance standards promulgated by the Committee for Public Counsel Services and in Mass.R.Prof.C. 1.14, as appearing in 452 Mass. 1301 (2008). For the reasons stated supra, we do not view this case as one in which we should reach these issues and standards.

9 In reference to the dissent, it will suffice to state that the majority respectfully does not accept the summary of the evidence, which focuses on L.H.’s testimony but does not account for the other evidence — in particular the expert psychiatric testimony — introduced at the hearings. Nor does the majority accept that we should turn for “guidance” to the performance guidelines of the Committee for Public Counsel Services. So too, the majority does not accept as necessary turning for “guidance” to the law of other States (see, e.g., the heavy reliance in the dissent upon the decision of the New Jersey Supreme Court in Matter of M.R., 135 N.J. 155 [1994], and the reliance on the law of other State cases in note 5, post). The majority, of course, agrees that the Massachusetts Rules of Professional Conduct operate ex proprio vigore in this case. But, even assuming that the standards of the ethical rules were not met by counsel — a point that we reject —■ that would not change the final result because, based on the evidence, the controlling prejudice standard was not met, as discussed supra. Finally, the majority rejects the dissent’s proposal that we should sua sponte order a new trial, when no new trial motion was filed in the Probate and Family Court.