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State may not force medication on mental patients absent danger

The Court of Appeals has issued a favorable and important decision upholding a mental patient's right to refuse forcible medication absent proof that the patient presents a present danger to himself or others in the hospital. The Public Justice Center, along with co-counsel Maryland Disability Law Center, represented the patient in the Circuit Court and then on appeal to the Court of Appeals. Former Appellate Director Suzanne Sangree did the oral argument last December, and was joined by Roscoe Jones, Jr., 2005-2006 Murnaghan Appellate Advocacy Fellow and Laura Cain and Irene Smith for the MDLC on the brief. An article in the Daily Record is reprinted below. Click this link to read the Court's decision: http://www.courts.state.md.us/opinions/coa/2007/47a06.pdf . State may not force medication on mental patients absent danger CYNTHIA DIPASQUALE Daily Record Legal Affairs Writer March 14, 2007 5:47 PM The state may not forcibly administer medicine to individuals held in mental health institutions unless they pose a danger to themselves or others while institutionalized, the Court of Appeals held Wednesday. Although the individuals may have been confined because of dangerous behavior, they still have the right to refuse treatment if they are competent to do so, the court said. “We believe that the Constitution — both the U.S. and the Maryland Constitution — protect an individual’s right to refuse treatments,” said Laura Cain, an attorney with the Maryland Disability Law Center, “and this case upholds that right for people who have a psychiatric disability, except at a very narrow circumstance of them presenting a danger within a facility.” Lawyers from the disability law center worked alongside attorneys at the Public Justice Center in presenting this case before the Court of Appeals. The court’s holding stems from an administrative appeal brought by a defendant confined at Clifton T. Perkins Hospital, a maximum security psychiatric hospital operated by the Department of Health and Mental Hygiene. The defendant, Anthony Kelly, was charged with raping two women in the Washington suburbs in March and June 2002 and then killing a Silver Spring man and his 9-year-old daughter in August 2002. Before his trial in Montgomery County Circuit Court, Judge Durke G. Thompson sought to have Kelly evaluated by psychiatrists at Perkins who determined he wasn’t competent to stand trial. Kelly resisted the diagnosis, however, and refused to take the anti-psychotic medications prescribed. An administrative law judge determined in September 2005 that the state was permitted to forcibly medicate Kelly since Thompson had determined that he was a dangerous person. The administrative law ruling was issued despite testimony by Kelly’s doctors that he had not exhibited any dangerous behavior while confined. That ruling was reversed by the Baltimore City Circuit Court, which had jurisdiction over issues concerning Kelly’s medical treatment. After taking the case on direct appeal, the Court of Appeals agreed that the governing statute was intended to limit the capacity of the state to treat unwilling patients. “The Clinical Review Panel, who recommended forcibly administering medication to Kelly, as well as the ALJ who approved the recommendation, premised their decisions upon the Circuit Court’s presumption of dangerousness. … In this they were wrong…,” Judge Lynne A. Battaglia wrote for the court. “Because there was no finding that Kelly is a danger to himself or others during his confinement in Perkins Hospital, a prerequisite to forcible administration of medication pursuant to Section 10-708(g) [of the Health-General Article], we shall affirm the judgment of the Circuit Court of Baltimore City.” The state health department had argued that this interpretation would “eviscerate” the statue, since it would permit patients to refuse treatment unless they posed a threat within the facility even though they were committed to the facility because they were found to be dangerous. However, the court determined it would be “incongruous” to permit the state to continually, forcibly medicate patients while also permitting it to intermittently force medication for emergency situations, under a separate section of the statute. In a concurring opinion, Judge Alan M. Wilner (retired), joined by Judge Glenn T. Harrell Jr., explained his concern that a majority of the court did not consider the circumstances that put Kelly into a mental health hospital. As a criminal defendant, the court should have considered what effect the medications would have on ameliorating the symptoms that caused Kelly to be confined and whether the medications would make him eligible for release, Wilner wrote. The two concurred in affirming the circuit court decision because they did not believe the state made a showing that the medication would achieve these results. An attorney for the state declined to comment Wednesday since he had not yet read the opinion. Kelly remains confined at Perkins.

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