IN THE SUPREME COURT OF CALIFORNIA
In re KANURI SURGURY QAWI,
S100099
on Habeas Corpus.
Ct.App. 1/1 A093094
Alameda
County
Super. Ct. No. 104714
The Mentally Disordered Offender Act (MDO Act), enacted in 1985,
requires that offenders who have been convicted of violent crimes related to their
mental disorders, and who continue to pose a danger to society, receive mental
health treatment during and after the termination of their parole until their mental
disorder can be kept in remission. (Pen. Code, § 2960 et seq.) Although the
nature of an offender’s past criminal conduct is one of the criteria for treatment as
a mentally disordered offender (MDO), the MDO Act itself is not punitive or
penal in nature. (People v. Superior Court (Myers) (1996) 50 Cal.App.4th 826,
836-840 (Myers).) Rather, the purpose of the scheme is to provide MDO’s with
treatment while at the same time protecting the general public from the danger to
society posed by an offender with a mental disorder. (Pen. Code, § 2960.)
In keeping with the scheme’s nonpunitive purpose, Penal Code section
2972, subdivision (g), provides that MDO’s who have been civilly committed after
their parole period has expired are granted the same rights that are afforded
involuntary mental patients under article 7 of chapter 2 of California’s general
civil commitment scheme — the Lanterman-Petris-Short Act (LPS Act; Welf. and
1
Inst. Code, § 5000 et seq.).1 Therefore, rather than grant a specific set of rights to
former offenders committed under the MDO Act, the Legislature instead chose to
reference the rights granted to involuntary patients from the general population
who have been civilly committed under the LPS Act.
In this case, we must decide whether respondent Kanuri Surgury Qawi,
petitioner below, an MDO, has the right under subdivision (g) of Penal Code
section 2972 to refuse antipsychotic medication prescribed for his mental disorder
in the absence of a judicial determination of his incapacity to make such a
decision. Petitioner, Dr. Jeffrey Zwerin, Medical Director of Napa State Hospital
(hereafter the Director), argues that an MDO has no such right. Qawi argues that
he does have that right, subject to limitation only in an emergency situation or in
the event he is adjudicated incompetent to refuse medical treatment.
We conclude that neither position is entirely correct. We hold that in order
to give MDO’s the same rights as LPS patients, an MDO can be compelled to take
antipsychotic medication in a nonemergency situation only if a court, at the time
the MDO is committed or recommitted, or in a separate proceeding, makes one of
two findings: (1) that the MDO is incompetent or incapable of making decisions
about his medical treatment; or (2) that the MDO is dangerous within the meaning
of Welfare and Institutions Code section 5300. As explained below, someone
committed or recommitted as an MDO may not necessarily fit in either of these
categories; such MDO’s would have the right to refuse medication in
nonemergency circumstances. The rights of MDO’s to refuse medication can be
further limited by State Department of Mental Health regulations necessary to
provide security for inpatient facilities.
1
For clarity, we will refer to “Article 7 (commencing with section 5325) of
Chapter 2 of Part 1 of Division 5 of the Welfare and Institutions Code” (Pen.
Code, § 2962, subd. (g)) as “Article 7 of the LPS Act” or “Article 7.”
2
As will be further explained, this interpretation will give MDO’s the same
right to refuse medication as mentally ill state prisoners, pursuant to Penal Code
section 2600. The adoption of the Director’s position, on the other hand, would
give rise to the incongruity that mentally ill former prisoners committed under the
MDO Act would not have the same limited right to refuse medication to which
mentally ill current prisoners are statutorily entitled.
I. FACTS AND STATEMENT OF THE CASE
In August of 1991, Qawi was convicted of felony assault, misdemeanor
assault and two counts of misdemeanor battery. He received a four-year sentence.
The probation report prepared in connection with this offense indicated that he had
attacked a couple in an unprovoked manner, and had made the delusional
statement during the attack that it was a blonde woman who caused the Vietnam
War.
Qawi was paroled in July of 1993, but his parole was revoked repeatedly.
In May of 1994, he was arrested for violating parole after he stalked a sales clerk
at a J.C. Penney store. He maintained that the woman, who did not know him,
was his wife.
During the incarceration for his second parole violation, Qawi was
evaluated, pursuant to Penal Code section 2962 under the MDO Act, for
involuntary treatment as a special condition of parole. The evaluators concluded
that Qawi met all of the statutory criteria for mental health treatment as a condition
of his parole under the MDO Act. During his hospitalization at California Medical
Facility at Vacaville, Qawi had been diagnosed with paranoid schizophrenia and
paranoid personality disorder. The evaluators noted that Qawi had received 90
days of treatment for his mental disorder and concurred that his mental disorder
was not in remission and could not be kept in remission without treatment. The
3
evaluators concluded that he had caused serious bodily injury in committing the
felony assault of which he was initially convicted, and his delusional thought
process was either the cause of, or an aggravating factor in, both the initial offense
for which he was incarcerated and his subsequent parole violations. The
evaluators also agreed that, by reason of his severe mental disorder, Qawi
represented a substantial danger of risk of physical harm to others. In reaching
this conclusion, the evaluators noted his history of assaultive and threatening
behavior during both the incarceration for his initial offense and subsequent
detention for his parole violations. One evaluator noted that, without medication,
respondent “tend[ed] to cycle in and out of decompensated states in which he
[was] hostile, paranoid and frequently assaultive.” The Board of Prison Terms
subsequently found that Qawi met the statutory definition of an MDO and ordered
that he be treated as an inpatient by the Department of Mental Health as a special
condition of parole.
Qawi’s parole status expired in 1997. On January 13, 1997, the superior
court found that Qawi continued to meet the statutory criteria for involuntary
treatment as an MDO after his parole had expired, and ordered that he be civilly
committed for one year.
Qawi’s civil commitment and involuntary treatment have been extended
annually since 1997. (Pen. Code, § 2972, subd. (e).) Since his initial placement
and treatment as an MDO in 1995, none of the petitions or supporting evaluations
identify any specific incidents of violence, threats of violence, or property damage
that have occurred. However, in several examinations, evaluators have described
Qawi as “clearly delusional and grandiose” and have noted that he “expresse[s]
some persecutory beliefs regarding his continued incarceration,” including that
“the State of California had no intention of ever letting him out of the hospital.”
4
Since 1999, the evaluations in support of respondent’s continued
commitment as an MDO expressly identify respondent’s lack of voluntary
participation in his treatment plan as the basis for his continued commitment.
Qawi has been prescribed antipsychotic medications to treat his paranoid
schizophrenia and personality disorder since his initial commitment. Psychiatric
evaluations supporting the extension of his MDO status indicate that, despite the
fact that he has received antipsychotic medication, he has consistently denied that
he is mentally ill, has denied culpability for his initial offense or parole violations,
and has remained uninterested and uncooperative in psychotherapy or other forms
of psychosocial treatment. Qawi consistently maintains that he suffers no mental
illness and requires no medication or other forms of treatment. Evaluators suggest
that if “Qawi [were] to be released into the community, it is very likely that he
would discontinue medication, decompensate to a more disorganized state, and
represent a substantial danger to others.”
Although Qawi has consistently voiced his opposition to this treatment, he
has not physically resisted the administration of this medication. Until 1998, he
was treated with various phenothiazines — the older generation of antipsychotic
medications.2 In 1996, after Qawi “complained bitterly about the side effects,”
treatment with antipsychotic medications was discontinued for a two-month
“medication holiday.” During this time, mild stiffness caused by the medication
subsided. However, Qawi’s treating psychiatrist noted that the discontinuation of
his medication resulted in a “mild but perceptible deterioration in [his] self-care
2
Qawi was medicated with the antipsychotic medication Mellaril during his
initial evaluation at the California Medical Facility in Vacaville. After he was
transferred to Atascadero, he was medicated with Serentil, Haldol and lithium
citrate. After his transfer from Atascadero to Patton State Hospital in February of
1997 he was medicated with Haldol, injected intramuscularly every 28 days.
5
and attendance,” and that he had started to refuse psychological testing and behave
inappropriately. Qawi was subsequently medicated with a different antipsychotic
medication that produced mild muscle side effects. Psychiatric reports state that
when medicated, Qawi exhibited a flattened affect and symptoms of anhedonia —
the medical term for inability to experience joy. He has also developed arterial
hypertension.
Since 1998, Qawi has been treated with Olanzapine and for a period of time
he was also injected with the tranquilizer Droperidol every six hours
intramuscularly for “agitation.” The Director notes that Olanzapine, “a new
generation medication,” has “fewer serious side effects and a fine record of
efficacy.” He states that “it has . . . been shown much less likely to cause tardive
dyskinesia, a severely troubling and often permanent movement disorder
associated with the administration of the older antipsychotic drugs.” He states that
in this case, Qawi’s dosage of Olanzapine is “well within the guidelines developed
by the Department of Mental Health” and treatment with this medication “would
be considered consistent with community standards in the treatment of paranoid
schizophrenia.” Qawi claims that despite the change in medication, he suffers
“permanent nightmares, high blood pressure, swollen tongue, upset stomach and a
hindrance of [his] thought processes.”
In November of 2000 respondent filed an original petition for a writ of
habeas corpus in the Court of Appeal, which, among other claims, challenged his
involuntary medication. The Court of Appeal ordered the Director to show cause
why, under subdivision (g) of Penal Code section 2972, Qawi was not entitled to a
hearing to determine his competence to refuse to take antipsychotic medication.
On July 24, 2001, in a published decision, the Court of Appeal concluded
that the plain meaning of Penal Code section 2972, subdivision (g) is that an MDO
is entitled to “all of the ‘rights set forth in Article 7 [of the LPS Act],’ one of
6
which is to ‘refuse treatment with antipsychotic medication.’ ” The Court of
Appeal held, therefore, “that reading the two statutory schemes together, and
following the plain language of Penal Code section 2972, subdivision (g), the
Legislature has given a person committed as a mentally disordered offender the
same right to refuse antipsychotic medication as a person involuntarily detained
under [Welfare and Institutions Code] sections 5150, 5250, 5260 and 5270.15 of
the LPS Act.”
The Court of Appeal granted in part and denied in part Qawi’s petition for
writ of habeas corpus and ordered the Director to immediately cease involuntarily
medicating Qawi. The Director subsequently petitioned this court for a review
and stay of the Court of Appeal decision.3 In a declaration attached to the stay
request, the Director states his opinion that “without his antipsychotic medication,
[Qawi] would pose a markedly increased risk to the safety and security of staff and
patients at Napa State Hospital.” He also states his belief that other MDO’s would
pose a similar danger without antipsychotic medication. We granted review.
II. DISCUSSION
Subdivision (g) of Penal Code section 2972 of the MDO Act states, in
pertinent part: “Except as provided in this subdivision, the person committed
shall be considered to be an involuntary mental health patient and he or she shall
be entitled to those rights set forth in Article 7 [of the LPS Act] . . . . [T]he State
Department of Mental Health may adopt regulations to modify those rights as is
necessary in order to provide for the reasonable security of the inpatient facility
in which the patient is being held.” (Pen. Code, § 2972, subd. (g).)
3
As we granted review, there was no need to issue a stay in this case. (See
Ng v. Superior Court (1992) 4 Cal.4th 29, 34.)
7
As will be explained at greater length below, only certain classes of LPS
patients are given the right to refuse medication. The Court of Appeal concluded,
and Qawi argues before us, that the plain meaning of the phrase “those rights” in
subdivision (g) is that an MDO is entitled to “all the ‘rights set forth in Article 7,’
one of which is to ‘refuse treatment with antipsychotic medication.’ ” Therefore,
“the Legislature has given a person committed as a mentally disordered offender
the same right to refuse antipsychotic medication as a person involuntarily
detained under [Welfare and Institutions Code] sections 5150, 5250, 5260, and
5270.15 of the LPS Act.” Stated another way, Qawi argues that subdivision (g)
contains no language indicating that an MDO’s rights are limited to those
afforded a certain category of LPS involuntary mental patients.
The Director argues the Court of Appeal’s interpretation of subdivision (g)
fails to account for the fact that the right to refuse antipsychotic medication under
Article 7 is a qualified right. More specifically, he contends that MDO’s so
closely resemble those patients committed under Welfare and Institutions Code
section 5300 who have been adjudicated dangerous that, in order to harmonize
the two statutory schemes, we must assume the Legislature intended that an
MDO’s rights be limited to those of a Welfare and Institutions Code section 5300
patient. As explained below, this category of involuntary patient has no statutory
right under Article 7 to refuse antipsychotic medication and no statutory right to a
capacity hearing.
We conclude that Qawi is incorrect that an MDO has the right to refuse
medication as long as he is determined to be competent. As explained below, he
does not have such a right if he is determined to be dangerous within the meaning
of Welfare and Institutions Code section 5300. But we also conclude that the
Director is incorrect in his contention that an MDO does not have the right to
8
refuse medication even if he is determined to be neither dangerous within the
meaning of section 5300 nor incompetent to refuse medical treatment.
A. Right under the Constitution, Common Law, and the LPS Act to
Refuse Antipsychotic Medication
The starting point of the analysis is the “relatively certain principle that a
competent adult has the right to refuse medical treatment, even treatment
necessary to sustain life.” (Conservatorship of Wendland (2001) 26 Cal.4th 519,
530 (Wendland); see also Riese v. St. Mary’s Hospital & Medical Center (1987)
209 Cal.App.3d 1303, 1317 (Riese).) This right is grounded both in state
constitutional and common law. (Wendland, supra, 26 Cal.4th at p. 531.) The
right of privacy guaranteed by the California Constitution, article I, section 1
“guarantees to the individual the freedom to choose to reject, or refuse to consent
to, intrusions of his bodily integrity.” (Wendland, supra, 26 Cal.4th at pp. 531-
532.)
1.
The Constitutional Right to Refuse Antipyschotic Medication
That right clearly extends to the right to refuse antipsychotic drugs. (Riese,
supra, 209 Cal.App.3d at p. 1318; Keyhea v. Rushen (1987) 178 Cal.App.3d 526,
540 (Keyhea).) No doubt such commonly used drugs, the phenothiazines, have
been of considerable benefit to many mentally ill patients. Use of these drugs has
greatly reduced the number of mentally ill individuals requiring hospitalization,
and the frequency and length of hospitalizations. (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, 293.) But they also have been the cause of considerable
side effects. Reversible side effects include akathesia (a distressing urge to move),
akinesia (a reduced capacity for spontaneity), pseudo-Parkinsonism (causing
retarded muscle movements, masked facial expression, body rigidity, tremor, and
a shuffling gait), and various other complications such as muscle spasms, blurred
9
vision, dry mouth, sexual dysfunction, drug-induced mental disorders. (Keyhea,
supra, 178 Cal.App.3d at p. 531.) A potentially permanent side effect of long-
term exposure to phenothiazines is tardive dyskinesia, a neurological disorder
manifested by involuntary, rhythmic, and grotesque movements of the face,
mouth, tongue, jaw, and extremities, for which there is no cure. (Ibid.) On rare
occasions, use of these drugs has caused sudden death. (Ibid.)
Although a new generation of antipsychotic drugs, the so-called atypicals,
have been regarded as being more benign and effective, considerable controversy
remains over both their efficacy and the extent and nature of their side effects.
(See Goode, Leading Drugs for Psychosis Come Under New Scrutiny, N.Y. Times
(May 20, 2003) p. 1.) Moreover, most atypical antipsychotics are difficult to
administer without a patient’s cooperation, because unlike the older generation of
medications, the newer drugs are generally not available in forms that can be
injected. (See Mossman, Unbuckling the “Chemical Straitjacket”: The Legal
Significance of Recent Advances in the Pharmacological Treatment of Psychosis
(2002) 39 San Diego L.Rev. 1033, 1078, fn. 214.) Also, phenothiazines are
cheaper than atypicals and are still the most widely used class of drugs to treat
psychosis. (See Julien, A Primer of Drug Action (9th ed. 2001) p. 339.) The basic
constitutional and common law right to privacy and bodily integrity is therefore
especially implicated by the forced administration of medications with such
potential adverse consequences.4
4
We emphasize that this opinion is concerned with the right to refuse
antipsychotic medication and not mental health treatment in general. We note that
the purpose of the MDO Act is to provide such treatment for the benefit of the
individual and the protection of the public. (Pen. Code, § 2970.) Whether an
individual already deprived of substantial liberty through an MDO commitment
may refuse to participate in noninvasive treatments incidental to that commitment,
or to opt out of a treatment program altogether, presents very different
considerations from whether he or she may refuse antipsychotic medication. As
(Fn. continued to next page)
10
The right to refuse antipsychotic medication is not, however, absolute, but
is limited by countervailing state interests. One such interest is parens patrie, the
state’s interest “in providing care to its citizens who are unable . . . to care for
themselves.” (Addington v. Texas (1979) 441 U.S. 418, 426.) In California,
parens patrie may be used only to impose unwanted medical treatment on an adult
when that adult has been adjudged incompetent. (See Wendland, supra, 26
Cal.4th at p. 535.)
Another such countervailing state interest is in institutional security. “It is
. . . well-established that when an individual is confined in a state institution,
individual liberties must be balanced against the interests of the institution in
preventing the individual from harming himself or others residing or working in
the institution.” (Jurasek v. Utah State Hospital (10th Cir. 1998) 158 F.3d 506,
510.) Thus, even a competent prison inmate, for example, may be forcibly
medicated, consistent with the federal due process clause, if it is determined that
he is a danger to himself and others, and that the treatment is in his medical
interest, as determined by an independent medical board. (Washington v. Harper
(1990) 494 U.S. 210, 229.)
(Fn. continued from previous page)
explained, the coercive administration of such medication, with its potentially
serious side effects, imposes a significant additional burden on the MDO’s liberty
interest. (See Sell v. United States (2003) __ U.S. __ [123 S.Ct. 2174, 2186-2187]
[defendant incarcerated pending trial may not be forcibly medicated for purposes
of rendering him competent to stand trial unless upon a showing that such
medication is necessary and there is no reasonable alternative].)
11
2.
The Statutory Right to Refuse Antipsychotic Medication
This right to refuse antipsychotic medication is recognized in the LPS Act,
the primary statutory scheme for civilly committing those who are mentally ill. In
order to fathom the precise nature of that right, it is necessary to understand the
LPS Act generally and how it confers rights on those within its purview.
The LPS Act provides for the prompt evaluation and treatment of mentally
disordered persons, developmentally disabled persons and persons impaired by
chronic alcoholism, while protecting public safety and safeguarding individual
rights through judicial review. (California State Psychological Assn. v. County of
San Diego (1983) 148 Cal.App.3d 849, 854-855; Welf. & Inst. Code, § 5000 et
seq.) Relevant here are the provisions of the LPS Act that govern the involuntary
treatment of persons with mental disorders. “Under the LPS Act, a person who is
dangerous or gravely disabled due to a mental disorder may be detained for
involuntary treatment. However, in accordance with the legislative purpose of
preventing inappropriate, indefinite commitments of mentally disordered persons,
such detentions are implemented incrementally.” (Ford v. Norton (2001) 89
Cal.App.4th 974, 979.) Accordingly, an individual with a mental disorder may be
involuntarily evaluated in a county-designated facility for as little as 72 hours if
that person is either “a danger to others, or to himself or herself” or “gravely
disabled” (Welf. & Inst. Code, § 5150), but this initial 72-hour evaluation may
lead to civil commitments lasting 14 days, 30 days, and 180 days, and, in certain
circumstances, to the establishment of a conservatorship on an annual basis. (See
Welf. & Inst. Code, §§ 5250 et seq., 5260 et seq., 5270 et seq., 5300 et seq., 5350
et seq.)
The LPS Act has been called a “Magna Carta for the Mentally Ill” that
“established the most progressive . . . commitment procedures in the country.”
(Assem. Subcom. on Mental Health Services, Dilemma of Mental Commitments
12
in California (1978) foreword by Assemblyman Louis Papan.) “The rights of
involuntarily detained mentally disordered people in California are scrupulously
protected by the [LPS Act].” (Thorn v. Superior Court (1970) 1 Cal.3d 666, 668.)
The LPS Act, in Article 7, confers rights on patients in two ways. First, it affirms
that “[p]ersons with mental illness have the same legal rights and responsibilities
guaranteed all other persons by the Federal Constitution and laws and the
Constitution and laws of the State of California, unless specifically limited by
federal or state law or regulations.” (Welf. & Inst. Code, § 5325.1.) Underlying
this general right is “one of the cardinal principles of LPS,” namely “that mental
patients may not be presumed incompetent solely because of their hospitalization.
As stated in [Welfare and Institutions Code] section 5331, ‘No person may be
presumed to be incompetent because he or she has been evaluated or treated for
mental disorder . . . regardless of whether such evaluation or treatment was
voluntarily or involuntarily received.’ Similarly, [Welfare and Institutions Code]
section 5326.5, subdivision (d), which is part of a section defining the written
consent required in certain circumstances, reiterates the basic idea that: ‘[a] person
confined shall not be deemed incapable of refusal [of proposed therapy] solely by
virtue of being diagnosed as a mentally ill, disordered, abnormal, or mentally
defective person.’ ” (Riese, supra, 209 Cal.App.3d at p. 1315, fn. omitted.)
Second, the LPS Act “specifies a nonexclusive list of rights including ‘[a]
right to dignity, privacy, and humane care’ ([Welf. & Inst. Code,] § 5325.1, subd.
(b)) and ‘[a] right to be free from harm, including unnecessary or excessive
physical restraint, isolation, medication, abuse, or neglect. Medication shall not be
used as punishment, for the convenience of staff, as a substitute for program, or in
quantities that interfere with the treatment program.’ ([Id.,] § 5325.1, subd. (c).)”
(Riese, supra, 209 Cal.App.3d at p. 1314.)
13
The presumption that LPS patients are competent to refuse antipsychotic
medication unless proven otherwise is based on a recognition that “mental illness
‘often strikes only limited areas of functioning, leaving other areas unimpaired,
and consequently . . . many mentally ill persons retain the capacity to function in a
competent manner.’ ” (Riese, supra, 209 Cal.App.3d at p. 1321.) “ ‘Competence
is not a clinical, medical, or psychiatric concept. It does not derive from our
understanding of health, sickness, treatment, or persons as patients. Rather, it
relates to the world of law, to society’s interest in deciding whether an individual
should have certain rights (and obligations) relating to person, property and
relationships.’ ” (Ibid.) The Riese court opined that “[j]udicial determination of
the specific competency to consent to drug treatment should focus primarily upon
three factors: (a) whether the patient is aware of his or her situation (e.g., if the
court is satisfied of the existence of psychosis, does the individual acknowledge
that condition); (b) whether the patient is able to understand the benefits and the
risks of, as well as the alternatives to, the proposed intervention . . . ; and (c)
whether the patient is able to understand and to knowingly and intelligently
evaluate the information required to be given patients whose informed consent is
sought ([Welf. & Inst. Code,] § 5326.2) and otherwise participate in the treatment
decision by means of rational thought processes.” (Riese, supra, 209 Cal.App.3d
at pp. 1322-1323.)
In Riese, this right to refuse antipsychotic medication was applied
specifically to patients who had been subject to short-term involuntary detention
and treatment for an initial 72 hours and certified as gravely disabled or as a
danger to self or others for 14 days’ additional treatment under Welfare and
Institutions Code sections 5150 and 5250. Riese’s recognition of the right to
refuse medication if competent has been codified in the LPS Act, Article 7, in
sections 5325.2 and 5332. Section 5325.2 provides that those “subject to
14
detention pursuant to Section 5150, 5250, 5260, or 5270.15 shall have the right to
refuse treatment with antipsychotic medication subject to provisions set forth in
this chapter.” Section 5332, subdivision (b) provides that if a person exercises
the right to refuse antipsychotic medication, that refusal can only be overridden
“upon a determination of that person’s incapacity to refuse the treatment, in a
hearing held for that purpose.” Section 5008 of the LPS Act defines
“antipsychotic medication” as “any medication customarily prescribed for the
treatment of symptoms of psychoses and other severe emotional disorders.”
(Welf. & Inst. Code, § 5008, subd. (l).)
But the reasoning of Riese makes clear that the right does not apply solely
to short-term LPS patients. Furthermore, the LPS Act provides that those gravely
disabled individuals who are subject to an LPS conservatorship can be required by
their conservator to accept medical treatment “if specified in the court order”
creating the conservatorship. (Welf. & Inst. Code, § 5358.) In other words,
medical treatment can be compelled for a conservatee “only if such treatment is
authorized in the court order of conservatorship or in a subsequent court order
(except in medical emergencies).” (Keyhea, supra, 178 Cal.App.3d at p. 535.) As
Keyhea recognized, such a court order divesting the conservatee of the right to
make his or her own medical decisions cannot be made “ ‘absent a specific
determination by the court that the conservatee cannot make those decisions. In
view of the fundamental nature of the right affected, the court should not make
such a determination unless it finds that the conservatee lacks the mental capacity
to rationally understand the nature of the medical problem, the proposed treatment
and the attendant risks.’ ” (Ibid., italics in original, citing 60 Ops.Cal.Atty.Gen.
375, 377 (1977).) The Keyhea court further affirmed that under the relevant
statutes, this principle applies to psychiatric treatment, including administration of
antipsychotic medication, as much as to other forms of medical treatment, and that
15
therefore “LPS conservatees have a right to refuse involuntary long-term
psychotropic medication absent a judicial determination of their incompetency to
do so.” (Keyhea, at p. 536.) Thus, as the Director recognizes, and contrary to the
central premise of the dissenting opinion, the long-term LPS Act conservatee
possesses the right to refuse antipsychotic medication absent a determination of
incompetence.
The LPS Act also acknowledges a limit on the right to refuse medication
derived from the need for institutional security. That acknowledgment comes in
essentially two forms. First, the LPS Act permits involuntary medication in
emergency situations. (Welf. & Inst. Code, § 5332, subd. (e).) An emergency is
defined as “a situation in which action to impose treatment over the person’s
objection is immediately necessary for the preservation of life or the prevention of
serious bodily harm to the patient or others, and it is impracticable to first gain
consent.” (Id., § 5008, subd. (m).) In order to provide this treatment, “[i]t is not
necessary for harm to take place or become unavoidable.” (Ibid.)
Second, the LPS Act implicitly addresses state interests in institutional
security in nonemergency situations by not including patients committed under
Welfare and Institutions Code section 5300 (hereafter section 5300) among those
patients with the right to refuse medication. Such patients have neither the right to
a capacity hearing possessed by LPS short-term patients (Welf. & Inst. Code, §§
5325.2, 5332, subd. (b)) nor the right to a court determination of competency to
refuse medical treatment possessed by long-term LPS conservatees (Welf. & Inst.
Code, § 5358; Keyhea, supra, 178 Cal.App.3d at p. 536). Qawi argues that we
cannot infer from the absence of the right to refuse medication under section 5300
that the section 5300 patient is denied that right. But the fact that a section 5300
patient is the only class of LPS patients not afforded the right makes such an
inference unavoidable.
16
Although the reason for not permitting section 5300 patients the right to
refuse medication is not made plain in the statutes or the legislative history, the
only characteristic that sets them apart from the short-term and long-term LPS
patients given that right is, as the Attorney General correctly argues, the fact that
the section 5300 patient poses a “demonstrated danger of inflicting harm upon
others.” Under section 5300, a person who has been certified for intensive 14-day
treatment after the initial 72-hour evaluation and treatment period may be confined
for further postcertification “treatment pursuant to the provisions of this article for
an additional period, not to exceed 180 days” if a “demonstrated danger” is
established. (See People v. Superior Court (Dodson) (1983) 148 Cal.App.3d 990,
992-993.)
Because the state’s substantial interest in institutional security must be
balanced by the constitutional and common law rights discussed to refuse
antipsychotic medication above, a statute seeking to balance such rights and
interests by forcing certain dangerous patients to take antipsychotic medication
against their will must define appropriately what constitutes “dangerous.” At one
end of the spectrum, a regime of forced medication based on a vague and
generalized suspicion of dangerousness would likely violate the state, if not the
federal, Constitution. (See Sell v. United States, supra, __ U.S. __ [123 S.Ct. at
pp. 2186-2187] [questionable whether government can justify involuntary
antipsychotic medication of person neither incompetent nor dangerous].) At the
other end, the forced medication of an LPS patient who repeatedly acts out
violently would no doubt be constitutionally justified.
Section 5300 is quite specific in how it addresses this problem, requiring
two types of findings of dangerousness. First, there must be a generalized finding
of “demonstrated danger” to others. “Demonstrated danger may be based on
assessment of [the person’s] present mental condition, which is based upon a
17
consideration of past behavior of the person within six years prior to the time the
person attempted, inflicted, or threatened physical harm upon another, and other
relevant evidence.” (Welf. & Inst. Code, § 5300.5.)
In addition to demonstrated danger, one of the following findings
establishing recent acts or threats of violence must be made in order to effect a
section 5300 commitment: “(a) The person has attempted, inflicted, or made a
serious threat of substantial physical harm upon the person of another after
having been taken into custody, and while in custody, for evaluation and
treatment . . . [¶] (b) The person had attempted, or inflicted physical harm upon
the person of another, that act having resulted in his or her being taken into
custody . . . [¶] (c) The person had made a serious threat of substantial physical
harm upon the person of another within seven days of being taken into custody,
that threat having at least in part resulted in his or her being taken into custody.”
(Welf. & Inst. Code, § 5300; see also id., § 5304, subd. (a).) A person may be
recommitted under section 5300 if during the 180-day postcertification period, he
or she “has attempted, inflicted, or made a serious threat of substantial physical
harm upon another” and continues to be a “demonstrated danger” as defined
above. (Id., § 5304, subd. (b).)
To summarize, the LPS Act balances the constitutional and common law
right to refuse antipsychotic medication with the state interests in caring for
individuals who cannot care for themselves and in providing security in
institutional settings. This balance is achieved by granting involuntarily
committed LPS patients a qualified right to refuse medication. A patient may
refuse medication unless (1) the person is determined to be incompetent, that is,
incapable of making rational decisions about his own medical treatment; or (2)
medication is administered pursuant to an emergency situation, as defined by the
LPS Act; or (3) the person is committed under section 5300 after a particularized
18
showing that the person is a demonstrated danger and that he or she was recently
dangerous, as defined by that statute.
B. The Rights of State Prisoners to Refuse Medication
The qualified right of LPS patients to refuse antipsychotic medication,
described immediately above, is virtually identical to the right possessed by
mentally ill state prisoners. As elaborated below, the fact that mentally ill state
prisoners have a qualified right to refuse such medication is highly relevant for
determining whether MDO’s have that right.
In Keyhea, supra, 178 Cal.App.3d 526, the court reviewed and ultimately
upheld a consent decree affirming the right of state prisoners to refuse
antipsychotic medication except under certain limited circumstances. The
starting point of its analysis was Penal Code section 2600, which provided at the
time that a state prisoner could only be deprived of such rights “as is necessary in
order to provide for the reasonable security of the institution . . . and for the
reasonable protection of the public.” (Added by Stats. 1975, ch. 1175, § 3,
p. 2897.) It first concluded that section 2600 was intended to protect statutory as
well as constitutional rights. (Keyhea, supra, 178 Cal.App.3d at pp. 533-534.) It
then concluded, based on a review of the rights of LPS conservatees discussed
above, as well as the rights of those without conservators, that nonprisoners
generally have the right to refuse antipsychotic medication unless found to be
incompetent and that this right should therefore also be afforded to prisoners.
(Keyhea, supra, 178 Cal.App.3d at pp. 534-539.) It then affirmed that no
security interests prevented such competency hearings. (Id. at p. 542.)
The consent decree in Keyhea eventually became a permanent injunction
specifying in considerable detail the circumstances under which a prisoner may
be forced to take antipsychotic medication. That permanent injunction was in
turn incorporated into Penal Code section 2600 in a 1994 amendment. The 1994
19
amendment broadened the discretion of prison officials to limit the rights of state
prisoners, allowing prisoners to be deprived of such rights “as is reasonably
related to legitimate penological interests” (Stats. 1994, ch. 555, § 1, p. 2821.)
But section 2600 was also amended to specify that “[n]othing in this section shall
be construed to permit the involuntary administration of psychotropic medication
unless the process specified in the permanent injunction dated October 31, 1986,
in the matter of Keyhea v. Rushen, 178 Cal.App.3d 526, has been followed.”
(Ibid.) That injunction, which may be found on the Web site of California
Department of General Services, Office of Administrative Hearings (Order
Granting Plaintiff’s Motion for Clarification and Modification of Injunction and
Permanent Injunction, Keyhea v. Rushen (Super.Ct. Solano county, Oct. 31,
1986, No. 67432) <http://www.oah.dgs.ca.gov/laws/keyhea.asp> [as of Jan. 5,
2004]) (hereafter Keyhea injunction)), therefore has the force of statutory law.
Because the essential premise of the injunction was to incorporate the LPS
patient’s right to refuse medication into the rights granted state prisoners under
Penal Code section 2600, the Keyhea injunction’s approach is highly relevant to
the issue posed by the present case.
The Keyhea injunction provides a process whereby a prisoner who is
subject to mental health treatment, after being administered involuntary
medication for up to 72 hours, may be certified for additional involuntary
medication up to 21 days if the prisoner is “as a result of mental disorder, gravely
disabled and incompetent to refuse medication for the danger to others, or danger
to self.” (Keyhea injunction, supra, § II(A), p. 6.) The prisoner, with the
assistance of an attorney or advocate, may contest certification. A certification
review hearing is conducted by the court-appointed hearing officer and if at the
conclusion of the hearing, the hearing officer concludes that the prisoner is
neither gravely disabled and incompetent nor a danger to others or to self,
20
involuntary medication must be discontinued. (Id., at § II (I), (M), pp. 11, 13.) A
prisoner may not be medicated involuntarily for more than 24 days without an
order from the superior court. The order authorizing involuntary medication
must find, by clear and convincing evidence, as above, that the prisoner, as a
result of mental disorder, is gravely disabled and incompetent to refuse
medication or a danger to self. (Id., § III(F), p. 18.) The injunction also permits
emergency involuntary medication under certain specified conditions. (Id. at
§ III(J), pp. 20-21.)
Most relevant for purposes of this case, the Keyhea injunction defines
“danger to others” “in substantial accord with Welfare and Institutions Code
section 5300,” and requires essentially the same findings of demonstrated danger
and recent dangerousness as in section 5300, discussed above. (Keyhea
injunction, supra, § I(4).) A prisoner will be considered a danger to others only
if he or she has attempted, inflicted or made a serious threat of “substantial
physical harm upon the person of another” either after being taken into custody
or as the cause of being taken into custody, as specified in section 5300, and
“presents, as a result of mental disorder, demonstrated danger of inflicting
substantial physical harm upon others.” (Keyhea injunction, supra, § I(4)(b), p.
4.) “Custody” refers to “confinement in an inpatient psychiatric unit.” The order
is only good for 180 days (or a shorter time if specified by the court) in the case
of those determined to be a danger to self or others, with new orders being
subject to the same procedural protections as the original orders. (Id., § (III)(I).)5
5
The Keyhea injunction’s treatment of those dangerous to others differs in
one significant respect from Welfare and Institutions Code section 5300. In the
latter case, recommitment must be based on actual, attempted or threatened
violence within the previous 180 day commitment period. (Welf. & Inst. Code, §
5304, subd. (b).) The Keyhea injunction does not require new acts to renew the
compulsory medication order, but only a renewed finding that the individual
(Fn. continued to next page)
21
Thus, the circumstances under which a state prisoner can be subject to
involuntary medication is substantially similar to that of the LPS patient. With
this background in mind, we turn to the MDO Act and to the rights granted
therein.
C. Rights Under the MDO Act
The MDO Act permits the government to civilly commit for mental health
treatment certain classes of state prisoners during and after parole. Briefly, a
paroled offender may be civilly committed as a condition of parole under the
MDO Act if a specified team of mental health professionals finds that the
offender has “a severe mental disorder [that] is not in remission, or cannot be
kept in remission without treatment, . . . and that by reason of his or her severe
mental disorder the prisoner represents a substantial danger of physical harm to
others,” and has met certain other conditions not relevant here. (Pen. Code,
§ 2962, subd. (d).) The term “substantial danger of physical harm to others” is
not defined. The statute declares that “[a] person ‘cannot be kept in remission
without treatment’ if during the year prior to the question being before the Board
of Prison Terms . . . , he or she has been in remission and he or she has been
physically violent, except in self-defense, or he or she has made a serious threat
of substantial physical harm upon the person of another so as to cause the target
of the threat to reasonably fear for his or her safety or the safety of his or her
immediate family, or he or she has intentionally caused property damage, or he
or she has not voluntarily followed the treatment plan.” (Id., § 2962, subd. (a),
(Fn. continued from previous page)
presents a demonstrated danger of inflicting substantial physical harm on others
due to a mental disorder. (See Keyhea injunction, supra, §§ I((4), III(I)(2);
Department of Corrections v. Office of Admin. Hearings (1998) 66 Cal.App.4th
1100, 1108).
22
italics added.) The MDO may request a jury trial to contest this commitment and
the jury must find the above conditions are met beyond a reasonable doubt. (Id.,
§ 2966, subd. (a).)
If the prisoner’s mental disorder cannot be kept in remission during the
parole period, the district attorney may then file a petition in the superior court
for a continuing commitment based on essentially the same grounds as for the
parole period. (Pen. Code, § 2970.) Commitment is subject to jury trial and is
for a period of one year (id., § 2972, subds. (a) & (c)), which may be renewed for
an additional year if the same findings are made in a recommitment proceeding
(id., § 2972, subd. (e)). (See Myers, supra, 50 Cal.App.4th at pp. 830-832.)
As stated, Penal Code section 2972, subdivision (g) declares in pertinent
part: “Except as provided in this subdivision, the person committed shall be
considered to be an involuntary mental health patient and he or she shall be
entitled to those rights set forth in Article 7 (commencing with Section 5325) [of
the LPS Act].” As explained above, Article 7 of the LPS Act, read in context,
provides that a patient has the right to refuse antipsychotic medication unless
(1) the person is determined to be incompetent, that is, incapable of making
rational decisions about his own medical treatment; or (2) the medication is
administered pursuant to an emergency situation; or (3) the person is committed
under section 5300 after a specified showing that the person is a demonstrated
danger and that he or she was recently dangerous.
An individual may be adjudicated an MDO without meeting any of these
criteria. Although an MDO must be determined to have a “severe mental
disorder,” commitment for a mental disorder does not by itself mean that
individuals are incompetent to participate in their own medical decisions. (Welf.
& Inst. Code, §§ 5326.5, subd. (d); 5331, Riese, supra, 209 Cal.App.3d at pp.
1315-1316.) Nor does the housing of an MDO give rise, by itself, to an
23
emergency situation. Nor does the MDO necessarily meet the criteria of
dangerousness set forth in section 5300. As observed, the “substantial danger of
physical harm to others” is without definition. In context, it appears to mean a
prediction of future dangerousness by mental health professionals. Section 5300,
in addition to requiring an assessment of future dangerousness, also requires a
finding of recent dangerousness as evidenced by tangible acts or threats of
violence.
The MDO’s definition of the phrase “cannot be kept in remission without
treatment” may be met by a finding of recent dangerousness, because that will be
found when the person “has been physically violent, except in self-defense, or
. . . has made a serious threat of substantial physical harm upon the person of
another” within the year prior to the commitment or recommitment proceeding.
(Pen. Code, § 2962, subd. (a).) But a finding of recent dangerousness is not
required. The “cannot be kept in remission without treatment” standard can also
be found when a person “has not voluntarily followed the treatment plan” during
the year prior to the commitment or recommitment proceeding. (Ibid.)
Moreover, Penal Code section 2962, subdivision (f) states that “ ‘substantial
danger of physical harm’ does not require proof of a recent overt act.” We
therefore conclude that an MDO does not lose the right to refuse antipsychotic
medication merely by being adjudicated an MDO, but only if he falls within the
categories, enumerated above, of those not entitled to refuse antipsychotic
medication within the LPS Act.
We therefore reject the Director’s argument that the MDO loses the right
to refuse medication because he or she has been determined to be dangerous at
some point in the past. The competent LPS patient loses the right to refuse
medication only when a statutorily specified showing of dangerousness has been
made that includes findings of recent dangerousness, as specified above. If an
24
MDO could be deprived of the right to refuse unwanted medication by a
substantially lesser showing of dangerousness than is required for such
deprivation under the LPS Act, then in truth the MDO would not have the same
rights as the LPS patient.
Such an interpretation of the MDO’s rights would not only make those
rights consistent with those given under the LPS Act, as the MDO Act mandates,
but also with those rights given to state prisoners under Penal Code section 2600
and the Keyhea injunction. As discussed above, mentally ill state prisoners can
only be forcibly medicated in nonemergency situations without a finding of
incompetence if they are found to be a danger to self or others, with “danger to
others” defined in conformity with section 5300. Adopting the Director’s
interpretation, on the other hand, would mean that those former state prisoners
subject to civil commitment as MDO’s would have a lesser right to refuse
antipsychotic medication than mentally ill state prisoners in custody. There is no
indication the Legislature intended this incongruity. Rather, Penal Code section
2972, subdivision (g) provides that MDO’s are to have the same rights as LPS
patients and, implicitly, as mentally ill state prisoners under section 2600, whose
statutory right to refuse medication is derived from the rights granted LPS
patients.
Of course, an MDO has against him or her not only a prediction of future
dangerousness but also a conviction for one of a number of serious felonies. But
neither the LPS Act nor Penal Code section 2600 limits the right to refuse
medication on the basis of prior felony convictions, and indeed, mentally ill state
prisoners will often have been convicted of serious or violent felonies. There is
no reason to believe the Legislature intended that an MDO’s rights should be
more circumscribed because of prior felony convictions than others committed to
involuntary treatment.
25
In adopting this interpretation of the MDO statute, we also reject Qawi’s
position, and that of the Court of Appeal below, that all competent MDO’s have
the right to refuse medication. If an MDO were given the right to refuse
medication even if he or she were determined to be dangerous within the
meaning of Welfare and Institutions Code section 5300, as Qawi urges, then he
or she would have a greater right to refuse medication than the LPS patient,
contrary to statutory mandate.
The Director raises concerns about institutional safety if some MDO’s are
allowed to refuse antipsychotic medication. It may or may not be the case that
permitting MDO’s under certain circumstances to refuse medication will create
security problems for the institutions housing and treating these patients. The
Legislature well understood that granting wholesale to an MDO an LPS patient’s
rights may cause institutional security problems. It provided a specific remedy
for these problems. Penal Code section 2972, subdivision (g), explicitly
delegates to the State Department of Mental Health the authority to “adopt
regulations to modify those rights as is necessary in order to provide for the
reasonable security of the inpatient facility in which the patient is being held.”
Thus the Legislature did not authorize the courts to limit the rights of MDO’s
based on speculation about what might happen if MDO’s were allowed to fully
assume the rights of LPS patients. Rather, the Legislature chose to delegate to
the Department of Mental Health the authority to impose such limits if its
experience in administering institutions in which MDO’s were housed
established that such regulations were “necessary in order to provide for the
reasonable security of the inpatient facility.” (Pen. Code, § 2972, subd. (g).) It is
not for us to second guess this legislative choice.
The Director also cites In re Locks (2000) 79 Cal.App.4th 890 in support
of his position. In Locks, a state prisoner serving a life sentence for murder was
26
charged with battery of a prison guard. He was initially found incompetent to
stand trial and was committed to Atascadero State Hospital (ASH) for treatment.
He was eventually found competent, and a trial court, after psychiatric
examination, accepted his plea of not guilty by reason of insanity. He was
committed to ASH and was treated with antipsychotic medication over his
objection. After two years and a determination that he had not recovered sanity,
he sought habeas corpus relief to establish his right to refuse medication. (Id. at
pp. 892-893.)
The Court of Appeal upheld the trial court’s denial of his petition. It
conceded that adjudication of Locks’s insanity did not necessarily mean that he
was incompetent to refuse medication. (Locks, supra, 79 Cal.App.4th at pp. 894-
896.) But it concluded he was not entitled to a separate hearing other than the
hearings committing and recommitting him to ASH pursuant to Penal Code
section 1026. The court did not determine what statutory rights are conferred on
a prisoner committed to a mental hospital after being adjudicated not guilty by
reason of insanity. Instead, it observed that, “for example,” a mentally ill state
prisoner whose rights were governed by Penal Code section 2600 and a Keyhea
injunction did not have a right to refuse medication if it was determined by clear
and convincing evidence that he was “a danger to others.” (Locks, supra, 79
Cal.App.4th at pp. 896-897.) It then reasoned that an adjudication pursuant to
Penal Code section 1026.2 that Locks was not yet eligible for release “presumes
that he is a danger to others.” (79 Cal.App.4th at p. 897.) The court concluded
that because he is a danger to others, he can, within the meaning of section 2600,
be denied the right to refuse antipsychotic medication. (Locks, at p. 897.)
The reasoning in Locks is flawed in at least two respects. First, inasmuch
as it purports to apply Penal Code section 2600 and the Keyhea injunction to the
facts before it, its application is incorrect. As discussed, the Keyhea injunction
27
defines specifically what “danger to others” means, requiring particular findings
of recent acts of dangerousness pursuant to Welfare and Institutions Code section
5300. The Locks court failed to acknowledge, much less apply, this standard.
Second, it is not clear whether Penal Code section 2600 applied to Locks, who
was a state prisoner but was also committed to a state mental hospital pursuant to
Penal Code section 1026. The Locks court failed to identify the statutory and/or
constitutional rights that govern persons committed after an adjudication of not
guilty by reason of insanity. These questions are beyond the scope of the present
case. Thus, we need not determine whether the result in Locks was correct. It is
enough to recognize that its holding does not extend to MDO’s explicitly granted
the statutory rights of the LPS patient.6
D. Standard and Application to the Present Case
We therefore hold that an MDO can be compelled to be treated with
antipsychotic medication under the following nonemergency circumstances: (1)
he is determined by a court to be incompetent to refuse medical treatment; (2) the
MDO is determined by a court to be a danger to others within the meaning of
Welfare and Institutions Code section 5300.7 An MDO’s right to refuse such
6
The distinction between Penal Code section 1026 and the MDO Act is
underscored by an uncodified portion of the latter, which states: “The Legislature
finds and declares that Department of Corrections prisoners subject to the
provisions of this act are in a separate, distinct class from persons who have been
committed by the State Department of Mental Health under the provisions of
Section 1026 . . . . Therefore, it is not intended that any provision of this act be
construed in any way to [a]ffect the status of persons committed to the State
Department of Mental Health under Section 1026 . . . .” (Stats. 1985, ch. 1419,
§ 2.75, p. 5018.)
7
Because the circumstances under which an MDO is committed differs from
a section 5300 commitment, we do not believe an exact adherence to the time
frames set forth in section 5300 is necessary. As explained, initial commitment
under section 5300 occurs after the expiration of 14 days of treatment and
observation and may be based on physical harm attempted or inflicted or threats
(Fn. continued to next page)
28
medication may also be limited pursuant to State Department of Mental Health
regulations modifying the MDO’s rights as is necessary in order to provide for
the reasonable security of the inpatient facility in which the patient is being held.8
A determination that a patient is incompetent to refuse medical treatment, or is
dangerous within the meaning of section 5300, may be adjudicated at the time at
which he or she is committed or recommitted as an MDO, or within the
commitment period.
In the present case, from the facts reviewed above, it is unclear whether
Qawi fits any of the above categories. His competence to refuse medical
treatment has not been adjudicated. It is not clear from the record whether he has
engaged in violence or threats within the relevant period. Because the statutory
standard we would adopt differs from that of the Court of Appeal, remand for
application of that standard is appropriate.
(Fn. continued from previous page)
while the patient was in custody or that caused him or her to be taken into custody,
or serious threats of substantial physical harm within seven days of being taken
into custody. Commitment and recommitment are for a period of 180 days and
recommitment is based on the above activity recurring sometime within the prior
180-period. (Welf. & Inst. Code, § 5304, subd. (b).) In the case of an MDO, he is
already in custody as a prisoner at the time his MDO status is adjudicated, and the
time frame used to adjudicate that status, both for purposes of commitment and
recommitment, is the year prior to the adjudication. (Pen. Code, §§ 2962, subds.
(a), (d)(1), 2972, subds. (c), (e).) We believe it is a reasonable translation of LPS
rights into the context of the MDO Act to hold that a court considering whether
medication may be involuntarily administered to an MDO should consider
whether he or she has committed the types of violent or threatening acts specified
in section 5300 within the year prior to the commitment or recommitment.
8
No such regulations have been issued as yet.
29
III. DISPOSITION
The judgment of the Court of Appeal is reversed and the cause is remanded
for proceedings consistent with this opinion.
MORENO, J.
WE CONCUR: GEORGE, C. J.
KENNARD,
J.
BAXTER,
J.
WERDEGAR,
J.
CHIN,
J.
30
DISSENTING OPINION BY BROWN, J.
In designating rights retained by mentally disordered offenders (MDO’s)
upon commitment pursuant to Penal Code section 2972, the Legislature did not set
a broad or unqualified standard. Indeed, the statute could hardly be more precise
in specifying its intended limits. Rather than respecting this carefully crafted
legislative scheme, however, the majority ranges well outside the designated
boundaries and formulates an answer that is at best a patchwork of extraneous and
irrelevant statutory and decisional law. At worst, it will achieve the opposite of
the legislative intent: MDO’s permitted to refuse antipsychotic medication will
not receive necessary treatment for their mental disorders and their refusal will
effectively subject them to indefinite commitment with little prospect of
habilitation, precisely the type of warehousing the Legislature sought to avoid. I
dissent.
The MDO Act (Pen. Code, § 2960 et seq.) comprises comprehensive
legislation addressing both the need to protect the public from the danger posed by
mentally disordered offenders and the state’s interest in providing treatment for
such individuals to the fullest extent possible. Accordingly, the commitment of
MDO’s is within the purview of an entirely different statutory scheme from the
Lanterman-Petris-Short Act (LPS Act; Welf. & Inst. Code, § 5000 et seq.9), and
provisions of the latter are applicable to MDO’s only to the extent provided by the
9
Further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
1
Legislature. (Cf. Pen. Code, § 2974 [upon release from prison or termination of
parole, an inmate who does not come within the provisions of the MDO Act but
who is a danger to self or others or is gravely disabled may be placed in a state
hospital pursuant to the LPS Act].)
The standards and procedures for commitment or recommitment of an
MDO upon termination of parole are set forth in Penal Code section 2972. The
individual’s MDO status is determined at a jury or court trial by proof beyond a
reasonable doubt. (Pen. Code, § 2972, subd. (a).) The trier of fact must find “that
the patient has a severe mental disorder, that the patient’s severe mental disorder is
not in remission or cannot be kept in remission without treatment, and that by
reason of his or her severe mental disorder, the patient represents a substantial
danger of physical harm to others . . . .” (Id., § 2972, subd. (c).) Thus, the
premise of such commitment—indeed, of the entire MDO Act—is the “substantial
danger of physical harm” posed by the MDO’s “severe mental disorder.” (See id.,
§§ 2962, subd. (d)(1), 2966, subd. (c), 2970; see generally id., § 2960.) As defined
in Penal Code section 2962, subdivision (f), “ ‘substantial danger of physical
harm’ does not require proof of a recent overt act.”
Although the primary purpose of the MDO Act is to ensure public safety,
amelioration or habilitation of the MDO’s condition is also an important goal. To
that end, commitment “places an affirmative obligation on the treatment facility to
provide treatment for the underlying causes of the person’s mental disorder.”
(Pen. Code, § 2972, subd. (f).) Because commitment under Penal Code section
2972 is nonpunitive, the Legislature has further provided that “the person
committed shall be considered to be an involuntary mental health patient”
“entitled to those rights set forth in Article 7 . . . of Chapter 2 of Part 1 of
2
Division 5 [sections 5325 through 5337] of the Welfare and Institutions Code
[(hereafter article 7)]” (Pen. Code, § 2972, subd. (g)), which sets forth the legal
and civil rights of persons involuntarily detained because of mental disorders.
Sections 5325 and 5325.1 set forth various rights of involuntary mental
patients, but neither contains any reference to the right to refuse antipsychotic
medication. The only provision addressing this question is section 5325.2, which
expressly reserves “the right to refuse treatment with antipsychotic medication”
but only to those persons “subject to detention pursuant to Section 5150, 5250,
5260, or 5270.15 . . . .” (See also § 5332.) The common thread of these latter
statutes is that they govern short-term commitments—ranging from an initial
72-hour evaluation to 14- and 30-day periods of intensive treatment—of persons
who are gravely disabled, chronic alcoholics, or believed to be a danger to self or
others. The purpose of these limited commitments is to evaluate the nature of the
person’s mental disorder, stabilize his or her condition, and determine whether
further confinement and treatment are necessary. Therefore, although the LPS Act
may incorporate the general common law right to refuse medical treatment (see
Riese v. St. Mary’s Hospital & Medical Center (1987) 209 Cal.App.3d 1303), it
expressly limits that right with respect to antipsychotic medication.
Conspicuously absent from the enumeration in Welfare and Institutions
Code section 5325.2 are MDO’s. The reason is readily apparent: Pursuant to
Penal Code section 2972, MDO’s have already been committed for one year under
standards and procedures that have identified the nature of their disorder and
confined them specifically for treatment thereof. (See generally, Pen. Code,
§ 2960.) Since Penal Code section 2972, subdivision (g), incorporates only those
rights set forth in article 7 of the LPS Act, and article 7 accords the right to refuse
antipsychotic medication only to certain short-term committees, the conclusion is
inescapable that MDO’s do not have that prerogative. Since they cannot refuse
3
this medication, the question of their competency is moot. (Cf. Welf. & Inst.
Code, § 5332.)
The majority concludes otherwise based on a free-ranging and circuitous
foray well outside the designated confines of article 7 of the LPS Act. First, the
majority determines that “the reasoning of Riese [v. St. Mary’s Hospital &
Medical Center, supra, 209 Cal.App.3d 1303] makes clear that the right [to refuse
antipsychotic medication] does not apply solely to short-term LPS patients.”
(Maj. opn., ante, at p. 15.) The legislative chronology does not bear out this
assertion. Riese was decided in 1987, four years before the enactment of section
5325.2. (See Stats. 1991, ch. 681, § 2, p. 3078.) While it is not entirely clear
whether the Legislature was reacting to the holding in Riese that persons
involuntarily detained under the LPS Act have the right to refuse antipsychotic
medication, it is clear that such right is now statutorily limited to short-term
involuntary detainees. A contrary finding defies statutory language that could
hardly be more explicit. Moreover, Riese was decided two years after the
language incorporating article 7 of the LPS Act into the MDO Act. (See Stats.
1985, ch. 1418, § 1, pp. 5009-5011.) The Legislature thus would have had no
reason to understand it was impliedly according MDO’s the right to refuse
antipsychotic medication.
The majority’s discussion of section 5300 is equally off point. That section
applies to another specific class of detainees—those who, after a 14-day period of
intensive treatment pursuant to section 5250, may be further confined for
treatment up to 180 days longer upon a finding of dangerousness as defined in the
statute. In addition to the fact that section 5300 does not appear in article 7 of the
LPS Act, this provision simply has no relevance to MDO’s who are committed
under an independent statutory scheme, with its own definitional criteria. To the
extent Welfare and Institutions Code section 5300 has any significance, it
4
underscores the implicit nexus drawn by the Legislature between dangerousness
and the denial of a right to refuse antipsychotic medication. By definition, MDO’s
have been found—at trial and beyond a reasonable doubt—to “represent[] a
substantial danger of physical harm to others” by virtue of a “severe mental
disorder.” (Pen. Code, § 2972, subd. (c).) This standard is at least as exacting as
Welfare and Institutions Code section 5300 and with greater procedural
protections. Nonetheless, the majority’s insistence that MDO’s are entitled to an
additional finding of dangerousness renders competing statutory schemes muddled
and potentially conflicting, where heretofore they operated in complete harmony
because each governed a distinct class of committees.
Equally unpersuasive is the implication that the majority’s holding is
necessary to conform the right of MDO’s to refuse antipsychotic medication to
that of non-MDO mentally ill state prisoners. (See Keyhea v. Rushen (1986) 178
Cal.App.3d 526.) Again, the majority has far exceeded the bounds expressly
imposed by the Legislature in designating the rights of MDO’s. The right of state
prisoners in this regard derives from Penal Code section 2600, both its prior
version as construed by the Court of Appeal in Keyhea and its current version as
amended in conformance with the holding in Keyhea. In contrast, the rights of
MDO’s derive from Penal Code section 2972 and its incorporation of article 7 of
the LPS Act. In reaching its conclusions regarding the rights of state prisoners, the
Keyhea court did not reference article 7, but instead drew its comparisons from the
statutory provisions governing LPS Act conservatees (Welf. & Inst. Code, § 5350
et seq.) and adult nonconservatees (Prob. Code, § 3200 et seq.). (Keyhea, at
pp. 534-540.) By contrast, the Legislature confined the rights of MDO’s to
article 7 and, significantly, did not alter that designation when it revised Penal
Code section 2600 to incorporate the Keyhea injunction.
5
The majority’s holding also disregards a cardinal principle of statutory
construction that courts must consider “the object to be achieved and the evil to be
prevented by the legislation. [Citation.]” (Harris v. Capital Growth Investors XIV
(1991) 52 Cal.3d 1142, 1159.) One express purpose of the MDO Act is to provide
the MDO “with an appropriate level of mental health treatment” initially while in
prison and later upon their release. (Pen. Code, § 2960.) Even outside the mental
health community, it is well recognized that for some individuals antipsychotic
medication may be a necessary component of any effective treatment program. In
giving control of that decision to the patient unless incompetent or dangerous
within the meaning of Welfare and Institutions Code section 5300, the majority’s
holding not only upsets the treatment mechanism by preventing the attending
mental health professionals from exercising their best judgment and discharging
their duty “to provide treatment for the underlying causes of the person’s mental
disorder.” (Pen. Code, § 2972, subd. (f).) The holding also makes it a virtual
certainty that MDO’s who choose to refuse appropriate and necessary medication
will be warehoused indefinitely because their treatment program will likely be
ineffective and thus fail to keep their mental disorder in remission. (See id.,
§ 2972, subd. (c).)
Moreover, the treatment of MDO’s already has considerable oversight, in
part, to protect against the misuse or overuse of antipsychotic medication. As
counsel for the director of Napa State Hospital represented at oral argument,
treatment programs are designed by a team of mental health professionals and are
reviewed quarterly. MDO’s may participate in the process if they desire and thus
have the opportunity to provide input on the type and amount of antipsychotic
medication. An independent internal review is also available on request. Those
conducting the independent review are not part of the treatment team and therefore
have no predetermined commitment to a particular medication regime. Counsel
6
represented that on at least one occasion, the independent review resulted in a
termination or modification of medication.
The authority of the state Department of Mental Health to adopt regulations
to modify the rights of MDO’s “as is necessary in order to provide for the
reasonable security of the inpatient facility in which the patient is being held”
(Pen. Code, § 2972, subd. (g)) does not ameliorate the negative impact of the
majority’s holding for several reasons. First, setting aside the time and effort in
complying with the Administrative Procedures Act (see Gov. Code, § 11340 et
seq.) that promulgation of such regulations would entail, the department’s ability
to formulate what would have to be “one size fits all” regulations is questionable.
At the very least, the language of the MDO Act, which imposes a duty to treat the
individual MDO, runs counter to the formulation of generic regulations regarding
antipsychotic medication. Second, under the terms of Penal Code section 2972,
subdivision (g), it is unclear on what basis the department would be able to justify
such regulations as necessary to the security of every inpatient facility. (See Gov.
Code, § 11342.2.) Third, any such justification would likely be based on
circumstances that render an MDO dangerous within the meaning of Welfare and
Institutions Code section 5300, in which case, the right to refuse antipsychotic
medication would terminate, rendering a regulation to the same effect superfluous.
Fourth, imposing regulations reduces or eliminates the very flexibility the current
system depends upon to tailor treatment programs to the specific needs of each
MDO and adjust treatment as warranted.
Sympathy for someone in respondent’s circumstances is understandable;
but that is not the question before the court. In enacting the MDO Act, the
Legislature has taken into account, and balanced, not only sympathy for the
MDO’s plight but the additional, and ultimately more substantial, concerns for
public safety and treatment of the MDO’s mental disorder. Without justification
7
or legal support and with at best limited knowledge of the practical circumstances,
the majority has displaced that careful balance with a rule that may in the abstract
seem fair and compassionate, but that is unworkable and unrealistic while
undermining legislative intent. We also have no reason to believe treatment of
MDO’s, including the administration of antipsychotic medication, is not handled
in accordance with the highest medical and legal standards as well as their best
interests. I would therefore in this case more than ever adhere closely to the
statutory language and defer to the policy judgments of the Legislature.
BROWN, J.
8
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion In re Qawi on Habeas Corpus
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S100099Date Filed: January 5, 2004
__________________________________________________________________________________
Court:
County:
Judge:
__________________________________________________________________________________
Attorneys for Appellant:
Renée E. Torres, under appointment by the Supreme Court, for Petitioner Kanuri Surgury Qawi.__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, Pamela Smith-Steward, Chief Assistant Attorney General, Charlton G.Holland III, Assistant Attorney General, Stephanie Wald, James M. Humes and Angela Botelho, Deputy
Attorneys General, for Respondent the People.
1
Counsel who argued in Supreme Court (not intended for publication with opinion):
Renée E. TorresFirst District Appellate Project
730 Harrison Street, Suite 201
San Francisco, CA 94107
(415) 495-3119
Angela Botelho
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5507
2
Opinion Information
| Date: | Docket Number: |
| Mon, 01/05/2004 | S100099 |
Parties
| 1 | Graziani, Dave (Non-Title Respondent) |
| 2 | Qawi, Kanuri Surgury (Petitioner) Represented by Renee E. Torres First District Appellate Project 730 Harrison Street, Suite 201 San Francisco, CA |
| Disposition | |
| Jan 5 2004 | Opinion: Reversed |
| Dockets | |
| Aug 3 2001 | Received premature petition for review Respondent {Dave Graziani} |
| Aug 24 2001 | Received Court of Appeal record One accordian folder |
| Aug 24 2001 | Case start: Petition for review filed |
| Aug 24 2001 | Stay application filed (separate petition pending - crim.) |
| Aug 29 2001 | Received: Declaration of Nicholas R. Burgeson, Chief of the program, Policy and Fiscal Branch of the Long Term Care Division of the California Dept. of Mental Health. |
| Sep 7 2001 | Answer to petition for review filed by counsel for aplt |
| Oct 10 2001 | Time extended to grant or deny review to 11-21-01 |
| Nov 14 2001 | Petition for Review Granted (criminal case) Votes to grant: unanimous |
| Dec 12 2001 | Counsel appointment order filed Renee Torres to represent Qawi. Brief on the merits shall be due w/in 30 days after Resp's brief is filed. |
| Dec 13 2001 | Opening brief on the merits filed by resp (D. Graziani Executive Dir. Napa St. Hosp.) |
| Dec 14 2001 | Received document entitled: corrected table of authoirities for petnr's opening brief on the merits. |
| Jan 10 2002 | Request for extension of time filed by counsel for petnr Qawi, to file the answer brief on the merits, to 2-13-02 |
| Jan 14 2002 | Extension of time granted to 2-13-02 for petnr to file the answer brief on the merits. |
| Feb 8 2002 | Request for extension of time filed to 2-28-02 for petnr to file the answer brief on the merits. |
| Feb 19 2002 | Extension of time granted to 2-28-02 for petnr to file the answer brief on the merits |
| Feb 26 2002 | Request for extension of time filed for petnr to file the answer brief on the merits, to 3-15-02. |
| Mar 4 2002 | Extension of time granted to 3-15-02 for petnr to file the answer brief on the merits. |
| Mar 18 2002 | Answer brief on the merits filed by petnr (timely-Rule40k) |
| Apr 2 2002 | Request for judicial notice filed (in non-AA proceeding) by counsel for Petnr. with one volume of exhibits. |
| Apr 2 2002 | Filed: Petnr's application for production of additional evidence. |
| Apr 4 2002 | Reply brief filed (case fully briefed) by A.G. for resp. |
| Nov 22 2002 | Received letter from: petitioner, dated 11-13. |
| Aug 28 2003 | Case ordered on calendar 10-8-03, 9am, L.A. |
| Sep 29 2003 | Order filed Respondent's request for judicial notice is granted. Petitioner's "Application for Production of Additional Evidence" is denied. |
| Oct 8 2003 | Cause argued and submitted |
| Jan 5 2004 | Opinion filed: Judgment reversed and remanded for proceedings consistent with the opinion. Majority opinion by Moreno, J. ----------------joined by George, C.J., Kennard, Baxter, Werdegar, Chin, JJ. Dissent by Brown, J. |
| Feb 5 2004 | Remittitur issued (criminal case) |
| Feb 10 2004 | Note: Record (1-doghouse) sent to 1DCA |
| Apr 21 2004 | Compensation awarded counsel Atty O'Connell |
| Briefs | |
| Dec 13 2001 | Opening brief on the merits filed |
| Mar 18 2002 | Answer brief on the merits filed |
| Apr 4 2002 | Reply brief filed (case fully briefed) |
