Rennie v. Klein

720 F.2d 266

• Court: Court of Appeals for the Third Circuit
• Decided: October 13, 1983
• Docket: Nos. 79-2576, 79-2577
• Status: Published

Opinions

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

GARTH, Circuit Judge, with whom AL-DISERT and JAMES HUNTER, III, Circuit Judges, join:

John Rennie, the plaintiff in this matter, has been a patient at the Ancora Psychiatric Hospital, a state institution in New Jersey, on numerous occasions since 1973. It was during his twelfth hospitalization, after an involuntary commitment proceeding, that Rennie instituted the suit which gave rise to these proceedings.¹ The issue presented in this appeal involves the constitutional right of involuntarily committed mentally ill patients to refuse antipsychotic drugs administered against their will.² The district court recognized a constitutional right to refuse treatment. Rennie v. Klein, 462 F.Supp. 1131 (D.N.J.1978) and 476 F.Supp. 1294 (D.N.J.1979). In doing so, however, the district court framed an injunction in which it embodied those requirements which the court deemed necessary to protect the liberty interest of involuntarily committed mental patients who refuse an-tipsychotic medication. Both parties appealed from the district court’s order granting a preliminary injunction.

I.

On appeal, this court sitting in banc agreed that there existed a constitutional right to refuse treatment. Rennie v. Klein, 653 F.2d 836 (3d Cir.1981) (in banc). Our opinion, while recognizing that “the patient has a constitutional right to be free from treatment that poses substantial risks to his well-being,” id. at 844-45, also included in its constitutional standard a “least intrusive means” analysis. See 653 F.2d at 845-47. Thus, the in banc majority affirmed the district court’s analysis, see 462 F.Supp. at 1145-48, but then rejected the injunction imposed by that court and modified that injunction to incorporate the provisions of New Jersey’s Administrative Bulletin 78-3, which was found to satisfy due process. 653 F.2d at 851.

At about the same time that the Rennie proceedings were taking place, we were also called upon to determine the constitutional standards which governed the case of a mentally retarded patient who claimed the right to be free from undue bodily restraint, the right to personal security, the right to protection from attacks by other inmates, and the right to adequate treatment. Romeo v. Youngberg, 644 F.2d 147 (3d Cir.1980) (in banc). Romeo involved a section 1983 action for damages in which the plaintiff claimed that as a mentally retarded inmate of Pennhurst, a state institution, his constitutional rights had been violated when he suffered, among other things, attacks on his person and physical restraints. Convening in banc, we found a Fourteenth Amendment liberty interest in freedom of movement, in personal security, and in habilitation, 644 F.2d at 164 — 69, but we did not agree on the relevant standard to be used in determining whether plaintiff Romeo’s rights had been violated.

The Supreme Court vacated the in banc majority judgment in Romeo, and adopted the standard announced by Chief Judge Seitz in his Romeo concurrence. Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982). The Supreme Court held that the standard for determining damage recovery for mentally retarded patients against doctors and other professionals turns on whether “the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.” Id. at 323, 102 S.Ct. at 2462 (footnote omitted). The Supreme Court thus declined to adopt a “least intrusive means” analysis, and remanded both Rennie, 458 U.S. 1119, 102 S.Ct. 3506, 73 L.Ed.2d 1381 (1982) and Rogers v. Okin, 634 F.2d 650 (1st Cir.1980), cert. granted, 451 U.S. 906, 101 S.Ct. 1972, 68 L.Ed.2d 293 (1981), vacated and remanded sub nom. Mills v. Rogers, 457 U.S. 291, (1982) to their respective courts. Mills involved the same issue as Rennie, namely, the constitutionality of the forcible administration of antipsychotic drugs to involuntarily committed mental patients. Rennie was remanded specifically for reconsideration in light of the Supreme Court’s opinion in Youngberg.³

II.

It is against the backdrop of both our Romeo and Rennie in banc decisions and the Supreme Court’s opinion in Young-berg v. Romeo that we have been called upon to reconsider our judgment in Rennie v. Klein, 653 F.2d 836 (3d Cir.1981). Having re-examined that opinion and judgment, I believe that the Supreme Court’s decision in Youngberg does not require any change in the judgment which accompanied our earlier opinion, even though the analysis leading to that judgment does require amendment. The Supreme Court in Youngberg did not refer to a “least intrusive means” analysis.⁴ Thus, if we are to reconsider Rennie in light of the Supreme Court’s teaching in Youngberg, we cannot employ the concept of “least intrusive means.” In New Jersey, the standard by which Rennie, as a mentally ill patient who has been committed involuntarily to a state institution, see State v. Krol, 68 N.J. 236, 344 A.2d 289 (1975), must have his constitutional right to refuse antipsychotic drugs measured, is whether the patient constitutes a danger to himself or to others.⁵ Because that evaluation must be the product of the medical authorities’ professional judgment, such a judgment and the resulting decision to administer medication will be presumed valid unless it is shown to be a “substantial departure from accepted professional judgment, practice or standards.” Youngberg, 457 U.S. at 323, 102 S.Ct. at 2462. One of the factors to be considered in the exercise of professional judgment- — albeit not a controlling or necessarily determinative factor — is whether and to what extent the patient will suffer harmful side effects. I believe that the professional judgment standard established by the Supreme Court in Youngberg sets the limits within which this factor must be assessed.⁶

Because the record here is limited to a representative and a class of involuntary committees I, in turn, would restrict the holding in this case to only those mentally ill patients who constitute a danger to themselves or to others.⁷ Thus, I would hold only that antipsychotic drugs may be constitutionally administered to an involuntarily committed mentally ill patient whenever, in the exercise of professional judgment, such an action is deemed necessary to prevent the patient from endangering himself or others. Once that determination is made, professional judgment must also be exercised in the resulting decision to administer medication.⁸

III.

The elimination of the concept of “least intrusive means” from this analysis does not, however, require that any change be made in the decree portion of our in banc opinion, which held that New Jersey procedures were adequate in implementing the rights of the mentally ill. Our. earlier judgment, even though incorrectly predicated on a “least intrusive means” analysis, properly determined that New Jersey’s regulations afforded sufficient due process protections with respect to forcibly medicating the mentally ill without the need for interposing external judicial requirements.⁹ By focusing on professional judgment, the exercise of which would include the considerations I have discussed, it is obvious that the New Jersey procedures provided in Administrative Bulletin 78-3 satisfy the due process requirements adopted by the Supreme Court in Youngberg. Thus, I would affirm our previous judgment but I would do so without reliance on any “least restrictive means” standard.

I am aware that intervening events have occurred since the district court entered its judgment.¹⁰ I am also aware that the district court’s order that we modified involved not a permanent, but a preliminary, injunction. Recognizing these circumstances, I would remand to the district court for further proceedings consistent with the principles discussed in both the Supreme Court’s Youngberg v. Romeo decision and the foregoing opinion in support of the judgment that I would affirm today.

1 . For additional factual and procedural background see Rennie v. Klein, 653 F.2d 836 (3d Cir.1981) (in banc).

2 . The district court conditionally certified three sub-classes. For purposes of this proceeding, we are concerned only with the second subclass, which consists of all adult patients involuntarily committed to any of New Jersey’s five state mental health facilities. Rennie v. Klein, 653 F.2d 836, 839 (3d Cir.1981) (in banc).

3 . Since that time there has been extensive legal commentary treating this subject. See, e.g., Note, Beyond Youngberg: Protecting the Fundamental Rights of the Mentally Retarded, 51 Fordham L.Rev. 1064 (1983); Comment, The Scope of the Involuntarily Committed Mental Patient’s Right to Refuse Treatment with Psychotropic Drugs: An Analysis of the Least Restrictive Alternative Doctrine, 28 Villanova L.Rev. 101 (1983); Note, A Common Law Remedy for Forcible Medication of the Institutionalized Mentally Ill, 82 Colum.L.Rev. 1720 (1982).

4 . On appeal to this court Romeo attacked the district court’s instructions to the jury. Our in banc opinion held, inter alia, that for a defendant to be free from liability, the defendant had to demonstrate that the restraints imposed were the “least restrictive means” of handling the patient, and that the treatment selected was the “least intrusive treatment” available under the circumstances. See, e.g., Romeo v. Youngberg, 644 F.2d 147, 166-68, 172-73 (3d Cir.1980) (in banc).

5 . See also Administrative Bulletin 78-3, § II(2)(b)(ii) (“... whenever there is a significant possibility that the patient will harm himself or others before improvement of this condition is realized, if medication is not administered.”).

6 . The standard espoused by Judge Adams mandates, in my opinion, no materially different analysis than the standard advocated here. Judge Adams requires, as do I, that “[t]he determination whether the patient poses a threat to himself or others ... precede[] even the contemplation of the forcible administration of antipsychotic drugs,” typescript at 5, and both Judge Adams’s standard and mine require the exercise of professional judgment prior to the administration of antipsychotic drugs. Typescript at 4.

7 . The Supreme Court in Youngberg expressly declined to deal with the issue of antipsychotic drugs because, as the separate opinions in our Romeo case pointed out, see 644 F.2d 147, 173 n. 1 (Seitz, C.J., concurring); id. at 183-84 (Aldisert, J., concurring); and id. at 186 (Garth, J., concurring), the Romeo record did not present the problem of antipsychotic drugs and their forcible administration. Youngberg, 457 U.S. at 319, 102 S.Ct. at 2460.

8 . The essential difference between the constitutional standard proposed by Chief Judge Seitz and that announced here is that Judge Seitz would leave it to the professional judgment of the medical authorities as to whether antipsy-chotic drugs could be forcibly administered to involuntarily committed patients even in the absence of a threshold determination that the patient was a danger to himself or others. The standard adopted here would preclude the forcible administration of such drugs unless the predicate determination was made that the patient was a danger either to himself or others.

9 . See Rennie v. Klein, 653 F.2d at 848-54. Among other things, the procedures provide that, in the event a patient protests the administration of antipsychotic medication, the attending physician shall explain his reasons for prescribing the drugs and shall set forth the drugs’ benefits and risks. § 11(B). The regulations limit the administration of antipsychotic drugs to three specific situations. § 11(2). In addition, the procedures establish a system of consultation with the patient, including encouraging the patient to seek outside advice from family and friends, review by other professional staff at the institution, and required meetings with a “treatment team” if the patient still refuses such medication. The physician is also required to submit the entire case to the medical director, whose concurrence is required before commencement of the medication, § 11(B), (C), and the plan of medication must be reviewed weekly once begun. § 11(E)(2).

Although I find that the procedures specified in Administrative Bulletin 78-3 satisfy due process requirements under the constitutional standard announced in text above, I have not addressed nor approved any interpretation of the regulations which arguably might constitute a departure from that standard. See, e.g., § 11(2). Inasmuch as no specific provision of the regulation has been challenged, that subject, if raised, should be left to the district court for its determination in the first instance.

10 . For example, Judge Weis noted in the majority in banc opinion that the Mental Health Systems Act, 42 U.S.C. §§ 9401-9503 (1980), which includes a “Bill of Rights” for mental health patients, was enacted subsequent to the district court’s decision. In that regard, Judge Weis noted that the district court, having retained jurisdiction, may “in its discretion consider the Mental Health Systems Act as relevant to the remaining proceedings.” 653 F.2d at 852 n. 17.