Md. Court of Appeals rules state of Md. may not force medication on

Daily Record, The (Baltimore), Mar 15, 2007 by Cynthia Dipasquale

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.

WHAT THE COURT HELD

Case:

Department of Health and Mental Hygiene v. Anthony Kelly, CA No. 47, Sept. Term 2006. Reported. Opinion by Battaglia, J. Filed March 14, 2007.

Issue:

Can the state forcibly medicate an individual confined in mental health institution if he doesn't pose a danger to himself or others while confined?

Holding:

No; affirmed. The individual may only be forcibly medicated if they pose a danger while confined, without consideration of their dangerousness outside of confinement.

Counsel:

Kathleen A. Ellis for appellant; Suzanne Sangree for appelle.