Disability Rights New Jersey Inc. v. Velez, No. 10-3950; U.S. District Court (DNJ); opinion by Debevoise, S.U.S.D.J.; filed September 27, 2013. DDS No. 10-7-xxxx [55 pp.]

Plaintiff Disability Rights New Jersey Inc (DRNJ) represents psychiatric patients who either are or will be treated at the state’s four state psychiatric hospitals. It argues that the state’s policy governing the involuntary administration of psychotropic drugs in nonemergency circumstances, Administrative Bulletin 5:04B, is constitutionally infirm and routinely violated and that, as a result, patients are forced to consume psychotropic drugs against their will in violation of the federal Constitution, the Americans With Disabilities Act, 42 U.S.C. § 12131, et seq., and § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a). It and defendants, New Jersey and the commissioner of the N.J. Department of Human Services, have filed cross-motions for summary judgment.

Held: A.B. 5:04B does not violate substantive and procedural due process rights of the class at large because the forced administration of psychotropic medication does not require a right to a judicial hearing and counsel. However, A.B. 5:04B violates the substantive and procedural due process rights of Conditional Extension Pending Placement (CEPP) status patients because there is no legitimate government objective in their continued forced medication, and such state action is arbitrary, conscience-shocking and oppressive in a constitutional sense. To the extent that A.B. 5:04B does not violate procedural and due process rights, it is not discriminatory because its application is within the ambit of safety concerns and any differential treatment is based on dangerousness not disability. However, the application of A.B. 5:04B to CEPP status patients is discriminatory because their dangerousness is no longer at issue.

Patients subject to A.B. 5:04B are those placed by DHS at a state psychiatric hospital or the Ann Klein Forensic Center who are already civilly committed under New Jersey Rule of Court 4:74-7 — civil commitment due to mental illness that leads to dangerousness — or 4:74-7(h)(2) — CEPP. CEPP patients are those who no longer constitute a danger to themselves or others and who are therefore entitled to discharge but an appropriate placement is not available. A.B. 5:04B does not apply to patients who voluntarily commit and reside in DHS psychiatric hospitals.

A.B. 5:04B provides that a professional licensed to prescribe psychotropic medication must complete the first section of an Involuntary Medication Administration Report stating, inter alia, the rationale for the recommended medication and any objections of the patient. The hospital medical director then appoints a three-person panel to conduct a hearing to determine whether the patient may be medicated without consent.

The patient receives a notice of hearing that advises him of the right to consult with the hospital’s client services advocate (CSA), to have the CSA assist him at the hearing, to testify, to present witnesses and documentary evidence and to question witnesses.

The panel includes a psychiatrist who acts as chairperson, an administrator, and another clinician, none of whom is currently involved in the patient’s treatment or diagnosis. If the panelists determine by a majority vote, with the nontreating psychiatrist in the majority, that the patient has a mental illness and, as a result, poses a likelihood of serious harm to self, others or property without medication, he may be medicated without his consent. If the chairperson/nontreating psychiatrist is not in the majority or votes against the involuntary medication, the medication is not authorized.

The patient may appeal to the hospital medical director. Any further appeal is to the Appellate Division of the Superior Court.

As to whether A.B. 5:04B violates the due process clause of the Fourteenth Amendment, the court says it is informed by Washington v. Harper, 494 U.S. 210 (1990), which found that the due process clause permits the state to treat a prison inmate who has a serious mental illness with antipsychotic drugs against his will if he is dangerous to himself or others and the treatment is in his medical interest. It held that a judicial hearing was not a prerequisite for the involuntary treatment and that the administrative procedures comported with procedural due process protections, noting that the recommendation was made by a licensed psychiatrist; the decision-makers were not involved in the prisoner’s daily care; and administration of antipsychotic drugs was consistent with the degree of care, skill and learning expected of a reasonably prudent psychiatrist acting in the same or similar circumstances. Also, the inmate had a right to notice of the adversary hearing, to be present at the hearing, to present and cross-examine witnesses, and to judicial review of the decision. Harper specifically rejected the contention that due process mandates assignment of counsel.

Following Harper, the court says an individual has a liberty interest in avoiding the unwanted administration of antipsychotic drugs under the Fourteenth Amendment but if he is confined in a state institution, individual liberties must be balanced against the institution’s interests in preventing the individual from harming himself or others in the institution. Here, patients have already been civilly committed based on a finding of dangerousness by a judge in a process that includes assignment of counsel. A subsequent administrative hearing without counsel, for the purposes of administration of psychotropic drugs, does not violate due process rights where a competent advocate is assigned to assist the patient. The decision to involuntarily administer psychotropic drugs is a medical decision reached by competent medical professionals and is not arbitrary, conscience-shocking, or oppressive in a constitutional sense.

However, the court says this holding does not extend to CEPP patients, as they have been determined by the court to no longer constitute a danger to themselves or others and therefore are entitled to discharge. Accordingly, no legitimate government objective exists as to their forced medication and continued medication is arbitrary, conscience-shocking and oppressive in a constitutional sense.

As to patients’ procedural due process rights, the court says the process in A.B. 5:04B provides safeguards similar to those upheld in Harper. It finds that the definition for the “likelihood of serious harm of danger” standard is not void for vagueness. There is no need for a transcription of the proceedings since the panel is required to note its decision in full and thus the basis of its opinion should be readily apparent and detailed. The challenge based on lack of assigned counsel fails since throughout the process, the patient is assigned a CSA to assist him.

Further, the court says Harper firmly establishs that a patient’s interests are adequately protected by allowing the decision to medicate to be made by medical professionals rather than a judge.

However, the court again says this holding does not extend to CEPP patients. The private interest at stake with these individuals is higher and any deprivation of their liberty interests from unnecessary forced psychotropic drugging is clearly erroneous.

As to whether A.B. 5:04B violates the ADA and the RA, the court looks to Olmstead v. L.C., 527 U.S. 581 (1999), and its progeny. Olmstead examined a challenge by voluntarily admitted mentally ill patients who were found able to live in community-based treatment programs, but were not transferred. It held that the ADA nondiscrimination requirement applied to services already rendered by the state such as the operative community-based transfers.

The court says the state’s treatment of CEPP patients cannot escape the protection of the ADA and RA. Their treatment cannot be swept under the “direct threat” exception as they no longer constitute a danger. Their treatment is facially discriminatory based on their mental illness, and reasonable modifications may be put into place that would not inequitably fundamentally alter the nature of the program.

However, as to the non-CEPP patients, the court says that adequate justification exists for differential treatment of them because the treatment is not based on disability but on a finding of dangerousness. Voluntarily committed patients who exhibit dangerousness due to their mental illness are also subject to A.B. 5:04B. Further, a comparison of the forced-medication process of the relevant population with similarly situated nonmentally ill persons does not lead to a conclusion of discrimination because the underlying issue is the same — the need for medical treatment related to dangerousness.

For plaintiff — William Emmett Dwyer (Disability Rights New Jersey Inc.) and Alexandra P. Kolod, of the N.Y. bar (Kirland & Ellis). For defendant — Susan K. O’Connor (Hoagland, Longo, Moran, Dunst & Doukas).