New Castle County- Civil Division
Ivan Cohen, M.D.
Delaware Psychiatric Center
1901 N. DuPont Highway
New Castle, DE 19720
Re: Treatment of Involuntarily Committed Patients Prior to Judicial
Dear Dr. Cohen:
You asked if Delaware Psychiatric Center ('DPC') staff can give an involuntarily admitted patient an intramuscular injection against their will, prior to that patient having had a civil commitment hearing. Your inquiry indicates that several "wildly psychotic" patients have been deprived of necessary care and treatment. This deprivation stems from the current DPC "custom" not to force these injections.
Your inquiry actually requires examination of two areas of Delaware law. First, the law defines medication as treatment, but only by analogy. Second, the law requires treatment, not mere confinement. Thus it is reasonable to conclude that involuntary treatment can be given under the circumstances posed by your question.
DPC staff correctly acknowledges that individuals are protected against unnecessarily intrusive state action by the United States Constitution.(1) But by declining to inject in the circumstances posed by your question, the DPC staff incorrectly places its emphasis upon the individual's right to refuse without appropriate consideration of the state's obligation to protect the individual as well as others.
There are two bases to Delaware's involuntary commitment laws -- the State's police power to protect society in general, and the State's parens patriae power to protect the individual's interests when he is incapable of protecting them himself.(2) The commitment of a patient who is dangerous to himself or others is a benefit to both society as well as the patient, a benefit the patient would otherwise be incapable of securing for himself.(3) A mentally ill person must be protected -- and treated -- because he lacks the legal capacity to give consent for treatment.(4)
The 14th Amendment to the United States Constitution protects us against unwarranted intrusive state action, regardless of its justification. Such due process protection is both substantive as well as procedural. Substantive due process defines the individual's protected interest, and identifies conditions under which conflicting state interests might outweigh it. Procedural due process concerns the minimum procedures the state must take before state interest can override the individual's liberty interest in some particular instance.(5) The United States Supreme Court identified three distinct factors considered in any due process inquiry:
1) the private interest at stake, 2) the risk of erroneous deprivation through the process used, along with the probable value, if any, of additional process, and 3) the state's interest, including the function involved and fiscal and administrative burdens imposed by additional or substitute process.(6)
Here the private interest is obvious: the patient's desire to be left alone with his liberty and dignity intact.(7)
The State's interest here is equally obvious: to provide the appropriate mental health care and treatment to protect the safety of the patient, the other patients, staff and the public.(8) To do otherwise seems only to constitute confinement, not treatment. Under the circumstances posed by your question, Delaware law requires both confinement and treatment.(9)
While not defined in Delaware law as such, medication is recognized as an integral part of psychiatric treatment. For these reasons, we conclude that Delaware law permits DPC staff, at the direction of a psychiatrist, to forcibly administer intramuscular injections for purposes of psychiatric treatment to involuntarily admitted patients prior to their judicial review.
Delaware law defines "mentally ill persons," i.e. those eligible for involuntary commitment, as meeting two threshold determinations. First, the person must have a mental disease or condition requiring observation and treatment at a mental hospital. Second, this disease or condition must be such that it both, 1) renders the patient unable to make reasonable decisions regarding treatment, and, 2) causes a threat of harm to self, others or property, if not given immediate care and treatment.(10)
The initial commitment process in Delaware is of two parts: the first 24-hour detention period, and (any) subsequent provisional admission. During that initial 24-hour period, the law states DPC "shall detain, care for and treat as medically appropriate."(11) Note the non-discretionary verb "shall."
Involuntarily detention of such persons beyond the first 24 hours requires that the DPC psychiatrist "shall" determine and certify in writing that the patient has the requisite mental illness criteria, as noted above.(12) Otherwise, DPC must at that time either discharge the person or allow him or her to voluntarily admit themselves.(13) At this stage, such hospitalization is called "provisional."(14) The psychiatrist's written certification that the patient is mentally ill is attached to the verified complaint filed with Superior Court. Thus, the judicial review process for involuntary mental health commitment is initiated by the psychiatrist's certification that the patient is in need of care and treatment at DPC.
DPC has specific legal duties to such provisionally admitted patients. These duties include physical and mental examination, presumably for diagnostic purposes; and treatment, so long as the examining psychiatrist has certified such treatment is necessary pending judicial review.(15)
There are repeated references in Delaware law to "treatment" but there is no actual definition of treatment.(16) But the law does state that such treatment be "in accordance with professional standards."(17) Antipsychotic medications have been acknowledged as the most common form of treatment prescribed in mental hospitals.(18) On the question, does psychiatric treatment include medication, the United States Supreme Court held:
Antipsychotic drugs, sometimes called ... psychotropic drugs, are medications commonly used in treating mental disorders ... there is little dispute in the psychiatric profession that the proper use of drugs is one of the most effective means of treating and controlling a mental illness ....(19)
By contrast, the Supreme Court noted that physical restraints or seclusion are ineffective substitutes for medication, in terms of both their medical ineffectiveness and their toll on limited institutional resources.(20)
When faced with a novel question of statutory construction, such as this, courts and lawyers seek to ascertain and give effect to the intention of the Legislature as expressed in the statute.(21) To ascertain a statute's legislative intent, the words of the statue, unless actually defined in the statute itself, must be given their commonly understood meanings.(22) A statute should not be construed to produce an absurd, meaningless or patently inane result.(23) Applying these rules of statutory construction, it is appropriate to conclude that, under Delaware law, treatment includes the administration of medication.
It follows that the decision to medicate should be guided by medical, not legal, standards. "[T]he participants in the procedure are mental health professionals, rather than judges who have doffed their black robes and donned white coats."(24)
There is no case law in Delaware on your specific question. There is, however, a Delaware Supreme Court decision that acknowledged medical determination of the prevailing standards of mental health care:
... the Delaware statutes concerning the care of the mentally ill do
not fully define all of the duties of mental health professionals. These
statutes do not eliminate the common law duty to use reasonable care in
the treatment ... of mentally ill patients.(25)
Courts consistently recognize that medical authority should be relied upon to diagnose mental illness and appropriately evaluate whether the patient poses a threat of harm to himself or others. "[N]either judges nor administrative hearing officers are better qualified than psychiatrists to render psychiatric judgments."(26) Our opinion then is that any decision to medicate, forcibly or not, will be sustained unless it can be shown to be a "substantial departure from accepted professional judgement, practice or standards."(27)
The case of Washington v. Harper(28) is illustrative on the point of due process. Because it deals with an inmate, it is not exactly on point with your question. But the case has other similarities with your question. In Harper, the Supreme Court found treatment of a mentally ill prisoner with psychotropic medications against his will and absent judicial review did not violate due process, because it was found that he was dangerous to himself and others, and that treatment was in his best interest.
The Court first acknowledged the inmate had a "significant liberty interest in avoiding the unwanted administration of antipsychotic drugs" under the 14th Amendment."(29) The Court's holding, as a matter of Constitutional law, that the standards of Washington's policy satisfied due process was again based upon the police power / parens patriae dichotomy noted above. The Court acknowledged both the interest of the State and "the prisoner's medical interests." The inmate must first be determined to be dangerous and the treatment must be medically appropriate.(30)
Washington's policy for inmates in need of medication is similar to Delaware's practices for involuntary commitment.(31) Under the Washington process, once a psychiatrist determines that an inmate has mental illness, involuntary medication administration is temporarily approved prior to the inmate's medication 'hearing' before a medical committee.
Herein lies the analogy to your situation -- the Harper court's acknowledgment that the individual's liberty interest was outweighed by the State's legitimate interest "in combating the danger posed by a person to both himself and others", and the State's
obligation to provide … medical treatment consistent not only with [the prisoner's] own medical interests, but also with the needs of the institution. … [A]dministrators have not only an interest in ensuring the safety of … staff … but also the duty to take reasonable measures for the prisoner's own safety.… These concerns have added weight when a [prison] … is restricted to inmates with mental illnesses.(32)
This means the State's police power and parens patriae obligations legitimately require treatment be given to protect other patients, staff, visitors, the public at large; as well as protecting the patient from himself. By its close analogy to the Washington process, Delaware's process provides adequate due process.
In conclusion, there is no legal proscription that would prevent DPC staff from forcibly treating involuntarily committed patients upon their arrival at DPC and prior to their initial judicial review hearing. This conclusion assumes such treatment is appropriate pursuant to the standards of care for the mental health profession. It is recommended, however, that DPC adopt policies to ensure that medication is the least restrictive and most appropriate treatment under these circumstances. These should include adequate explanation to the patient, documentation for the necessity of the medication, and documentation of the rejection of a less restrictive treatment before medication was prescribed.
Please contact us if we may be of further assistance or if you have questions regarding this opinion.
Very truly yours,
Gary W. Alderson
Deputy Attorney General
Peter S. Feliceangeli
Deputy Attorney General
Michael J. Rich
cc: The Honorable M. Jane Brady, Attorney General
Philip G. Johnson, Opinion Coordinator
1 U.S. CONST. Amend. XIV, § 1.
2 Rennie v. Klein, 720 F.2d 266, 273 (3rd Cir. 1983).
3 Id. at 273.
5 Mills v. Rogers, 457 U.S. 291 at 299 (1982), Youngblood v. Romeo, 457 U.S. 307 at 319 (1979), Parham v. J.R., 442 U.S. 584 at 606 (1979).
6 Matthews v. Eldridge, 424 U.S. 319, 334 (1975).
7 16 Del.C. § 5010(2).
8 Id. See also Washington v. Harper, 494 U.S. 210, 225-226 (1990).
10 16 Del.C. § 5001(1).
11 16 Del.C. § 5122(d)(emphasis added).
12 16 Del.C. § 5003.
13 16 Del.C. § 5003.
14 16 Del.C. § 5003.
15 16 Del.C. § 5005(1)(emphasis added).
17 16 Del.C. § 5012(a).
18 Jessica Litman, A Common Law Remedy For Forcible Medication of the Institutionalized Mentally Ill, 82 Colum. L. Rev. 1720
19. 19 494 U.S. at 214, 226 (emphasis added).
20. 20 Washington v. Harper, 494 U.S. 210, 226-227 (1990).
21. 21 Keys v. State, 337 A.2d 18, 22 (Del. 1975)(per curium).
22. 22 Kofron v. Amoco Chemicals Corp., 441 A.2d 226, 230 (Del. 1982),
Moore v. Chrysler Corp., 233 A.2d 53, 55 (Del. 1967).
23. 23 Nationwide Mutual Insurance Co. v. Krongold, 318 A.2d 606, 608 (Del. 1974),
Opinion of the Justices, 295 A.2d 718, 721-22 (Del. 1972).
24. 24 653 F.2d at 851.
25. 25 Naidu v. Laird, 539 A.2d 1064, 1072 (Del. 1988).
26. 26 Parham v. J.R., 442 U.S. 584, 607 (quoting In re Roger S., 569 P.2d 1286, 1299 (Cal., 1977) (Clark, J., dissenting).
27. 27 720 F.2d at 269.
28 494 U.S. 210 (1990).
29 Id at 221.
30 Id. at 223, 227.
31. 31 Id. at 215, 225 (emphasis added).
32 Id. at 225 (emphasis added).
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