IR9 — Representing The Patient In Medication Hearings

December, 1997

In 1993, the Texas legislature passed a law prohibiting the involuntary administration of psychoactive medication to persons committed to state hospitals unless the patient is having a medication-related emergency or an order is issued under the Texas Health and Safety Code § 574.106 authorizing the administration of the medication regardless of the patient's refusal. Attached is the session law implementing this and related provisions.

The attorney for the patient in a medication hearing should adopt an adversarial posture. In representing patients in state hospitals, it is important to resist the temptation to slip into a best interest or paternalistic type of representation; a style which is no more appropriate in these cases than in any other legal matter. Courts have required that decisions that involve invasions of a person's liberty, such as forcible administration of medication, are to be made in the courtroom rather than the nurses' station. Due process of law requires a full presentation of the relevant facts and an assertive presentation of competing views. Counsel's assistance in the presentation of the patient's rights is an essential element of due process.

Under Texas law, a person is presumed to be mentally competent unless a judicial finding to the contrary is made under the Texas Probate Code and the Texas Health and Safety Code § 576.002. The provision of court-ordered mental health services to a person is NOT a determination or adjudication of mental incompetency and does not limit the person's rights as a citizen, the person's property right or the person's legal capacity. TEX. HEALTH & SAFETY CODE ANN. § 576.002. Also, regardless of his (1) own personal opinion, an attorney appointed to represent a patient in a civil commitment proceeding is required to use all reasonable efforts within the bounds of law to advocate for the patient's right to avoid court-ordered mental health services if the proposed patient expresses a desire to avoid the services. TEX. HEALTH & SAFETY CODE ANN. § 574.004(c). Similarly, in medications hearings the attorney should take his direction from the client.

When a lawyer reasonably believes that a client suffers a mental disability or is not legally competent, it may not be possible to maintain the usual attorney-client relationship. Nevertheless, the client may have the ability to understand, deliberate upon, and reach conclusions about some matters affecting the client's own well-being. Furthermore, to an increasing extent the law recognizes intermediate degrees of competence . . . . The fact that a client suffers a disability does not diminish the desirability of treating the client with attention and respect.

Texas Disciplinary Rules of Professional Conduct, Rule 1.03, comment 5. (emphasis added).

It is clear that representation of a patient in these medication hearings will require considerable time and effort by the attorney. The following is a CHECKLIST of what the lawyer should consider in his preparation of the case.

Checklist

Initial Steps
  1. Review the Texas Mental Health Code, TEX. HEALTH & SAFETY CODE ANN. § 574.101 et seq., and departmental rules (25 T.A.C. § 405.801-405.812) governing consent to treatment with psychoactive medication. Become knowledgeable about issues to be adjudicated at the hearing, i.e., mental illness, competency, and medications.
  2. Obtain a copy of the notice.
  3. Review the Petition. If the petition was not filed by the treating psychiatrist, you may be able to get the petition dismissed. Make sure the petition specifically states the medications that the psychiatrist wants your client to take. Refer to the Physician's Desk Reference (PDR) to determine whether the medication is appropriate for the client's diagnosis.
  4. Interview your client to ascertain his wishes; explain your role to client, the law, the patient's options, and the criteria used to compel psychoactive medications. Explain that the patient may hire private counsel at his expense, if desired.
  5. If your client is unable to communicate his wishes to you, determine if there is any evidence of the patient's preference, i.e., advance directives (2), directives to physicians, written or oral statements to friends or relatives.
  6. Request the list of medications that the hospital has provided your client pursuant to TEX. HEALTH & SAFETY CODE ANN. § 576.027, which must be provided within four (4) hours of your or the patient's request. This list can be used to cross-examine the psychiatrist, especially if the prescribed medication has been used with your client in the past and did not work.
  7. Request the prescription medication information from the hospital pursuant to TEX. HEALTH & SAFETY CODE ANN. § § 571.0065 and 572.0022. This information must specify conditions medications are commonly used to treat, side effects and risks, and other sources of detailed information concerning the medications ordered by the treating physician.
  8. Review your client's hospital records, including:
    1. medical records--note medications prescribed, purposes of medication, side effects, physical condition.
    2. treatment review notes--note diagnoses, treatment history (inpatient and outpatient), comments re: competence of client. Particularly note any circumstances where the patient was considered to be sufficiently competent to sign for treatment programs, release of records, medical procedures.
    3. determine whether your client has gone through medication training at the hospital and, if so, whether the hospital tested his capacity to understand the medication and related issues.
    4. unit notes/nursing or progress notes--note client's adjustment to unit, relationships with staff and degree of cooperation with treatment program. Look for names of potential witnesses for patient.
  9. Identify petitioner and confer with him personally or through counsel (as appropriate).
    1. Attempt to determine petitioner's reason for requesting an order authorizing the involuntary administration of medication.
    2. Discuss alternatives to medications.
  10. Confer with potential witnesses including:
    1. treating psychiatrist/psychologist;
    2. nursing staff;
    3. other ward staff;
    4. any other relevant staff (e.g., social worker or case manager); and
    5. other possible witnesses suggested by the client.
  11. Confer with other involved parties (e.g., family, persons outside hospital familiar with client).
  12. Prepare detailed file memorandum utilizing accumulated information to develop history in the following areas:
    1. medication history including side effects;
    2. pattern of participation in inpatient treatment;
    3. pattern of participation in outpatient treatment, including past community residential and non-residential placements;
    4. relative degree of success of previous treatment plans; (especially less restrictive alternatives);
    5. current treatment plan (degree of restriction in program, signs of progress);
    6. school record;
    7. criminal record;
    8. employment record;
    9. prior guardianships/commitments, previous evaluations done in conjunction with same;
    10. home situation, relationships with relatives, significant others; and
    11. relationship with children, impact of illness on children.
  13. Consider:
    1. patient's capacity to make medication decision;
    2. for rebuttal purposes, factors the court will consider in determining best interests of the incapacitated person:
      1. patient's expressed preferences regarding treatment--why he refuses the particular medication(s) and if other medication(s) would be acceptable to the patient;
      2. strength of patient's religious convictions to the extent that they contribute to refusal;
      3. risks and benefits of taking medications, from the perspective of the patient;
      4. probability and severity of adverse side effects;
      5. consequences to the patient if the medication is not administered;
      6. progress without treatment;
      7. progress with treatment; and
      8. alternatives to treatment.

Preparation for Hearing

  1. Formulate alternative final dispositions with regard to least restrictive treatment and alternative medications.
  2. Prepare to argue that the Advanced Directive controls--as does a Directive to Physicians in a medical treatment case--whether or not the patient should be ordered to take medication, or which medications he cannot be forced to take.
  3. Formulate strategy for achieving goals, e.g. trial, hearing/argument to judge, negotiation with prosecutor and petitioner to reach out of court settlement.
  4. Assess likelihood of each alternative.
  5. Decide upon final strategy.
  6. Review decision with patient, and advise patient as to:
    1. his right to be present at the hearing;
    2. if the patient is on a temporary commitment, his right to have the hearing on a separate day from the commitment hearing; and
    3. what course of action appears to be in his best interest.
  7. Contact other parties, and discover: witness list, goals, strategies (as much as ethically possible). Consider pretrial conference.
  8. Prepare for hearing:
    1. Request that the proceeding be on the record pursuant to TEX. GOV'T CODE ANN. § 52.046 and TEX. HEALTH & SAFETY CODE ANN. § 574.031(g). If patient fails to show request for record or objection to proceeding without record, right may be waived.
    2. Consider motion for independent psychiatric/psychological examination; consider possible independent clinicians.
    3. Prepare any pretrial motions, memoranda, and requests for rulings.
    4. If a witness such as former psychiatrist is willing to testify but unable to come to court, file motion to have witness testify by telephone.
    5. Consider introducing records from local MHMR center or psychiatrist by subpoenaing the custodian.

After Hearing

  1. Review with the patient the written notification of the court's decision.
  2. Explain to the patient that:
    1. the order is good only for the duration of the existing commitment and only for the class of medications referred to in the order;
    2. the order does not mean that he has been declared incompetent for other purposes under the law; and
    3. he and the treating physician have the right to seek modification of the order when the class of medication authorized in the order is changed.
  3. Consider an appeal and explain to the patient the right to appeal, the time requirements and the likelihood of prevailing.

Endnotes

(1) Advocacy, Inc. alternates male and female pronoun usage in its handouts. In this handout, we use the male pronoun.

(2) Please See Advocacy, Inc.,'s handout, How to Make an Advanced Directive.

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