In re L.K.

14 Wash.App.2d 542

471 P.3d 975

In the MATTER OF the DETENTION OF L.K.

No. 53377-4-II

Court of Appeals of Washington, Division 2.

Filed September 1, 2020

PUBLISHED OPINION

Worswick, J. ¶ 1 Former RCW 71.05.215 (2018) establishes an involuntarily committed person's right to refuse antipsychotic medication and requires that the State attempt to obtain such a person's informed consent to treatment. The State is not relieved of this obligation merely because a physician believes an attempt to obtain informed consent would be futile.

¶ 2 LK appeals a superior court order authorizing the involuntary administration of antipsychotic medications. LK argues that the State failed to attempt to obtain her informed consent as required by statute, thereby violating her right to due process and rendering the order authorizing the involuntary administration of antipsychotic medication unlawful. We agree, reverse the superior court's order, and remand to the superior court to vacate the order authorizing involuntary administration of antipsychotic medication.

FACTS

¶ 3 LK was diagnosed with schizoaffective disorder, bipolar type, and has been hospitalized at Western State Hospital (WSH) six times, most recently in August 2017. In February 2019, while LK remained hospitalized, her psychiatrist at WSH, Dr. Nagavedu Raghunath, petitioned for an order granting the involuntary treatment of LK with antipsychotic medication. Specifically, Dr. Raghunath sought to treat LK with new medications: "Risperidone by mouth and later, Risperidone Long Acting Injectable; Fluphenazine Intramuscular if oral Risperidone refused." Clerk's Papers (CP) at 48.

¶ 4 The day before the hearing on the petition, the State secured LK's signature on a "twenty-four hour medication notice." CP at 53. This notice documents LK's understanding that she may refuse her medications the day prior to the hearing. LK indicated on the form that she agreed "to remain under medication as prescribed." CP at 53.

¶ 5 The following day, at the hearing on the petition, Dr. Raghunath testified that LK was experiencing significant delusions. Dr. Raghunath explained that LK had responded well to treatment with Clozaril in the past, but in January she refused to take it. In February, she stopped all medications and began decompensating.

¶ 6 Dr. Raghunath testified that he had neither prescribed nor discussed treatment with risperidone or fluphenazine with LK. Instead, Dr. Raghunath focused on LK's previous resistance to treatment with Clozaril :

Her kind of reason for not taking medication can vary [sic] anything from Clozaril needed regular blood draws to see how she is reacting to that, whether she is developing any kind of side effects to that. But she said that she has no blood in her body to give, and so she doesn't want to have that medication. Then she said that it makes her too drowsy. She is not able to get up in the morning .... Then she also said that it makes her too tired during the day. So—and of course, she also said that she doesn't think she needs that medication because she has no mental illness.

Report of Proceedings (March 1, 2019) (RP) at 8. Dr. Raghunath acknowledged that "[n]o discussion has happened" with LK about the newly proposed treatment for which he sought authorization to involuntarily administer.

¶ 7 The superior court commissioner entered findings of fact and conclusions of law supporting an order authorizing involuntary treatment with antipsychotic medications. As to LK's consent to treatment, the commissioner focused on Dr. Raghunath's testimony about LK's feelings toward treatment with Clozaril and found: "[LK] has refused to consent to treatment with antipsychotic medication for the following reasons[.] She says she does not have enough blood in her body, that it makes her tired and that she does not have a mental health disorder." CP at 56. The commissioner concluded that LK may be involuntarily treated with the antipsychotic medication requested in the petition.

¶ 8 LK moved to revise the commissioner's order. At a hearing before a superior court judge on the motion to revise, LK argued, in relevant part, that the State failed to attempt to obtain her informed consent to the proposed treatment. The superior court denied LK's motion to revise. The superior court reasoned:

She's not taking her medications. She's refused medications for a variety of delusional beliefs. I think that an attempt to obtain informed consent from somebody who is actively psychotic, schizophrenic, threatening, abusive, disrobing, etc., is an exercise in futility . It's not what I think the statute contemplated.

....

Informed consent also I think implies that the person has a degree of competency such that they can choose between an alternative course in a rational thought process, as opposed to a delusional belief system.

RP (March 22, 2019) at 20 (emphasis added).

¶ 9 LK appeals the superior court's order denying her motion to revise the commissioner's ruling.

ANALYSIS

¶ 10 LK argues that the superior court violated former RCW 71.05.215, former RCW 71.05.217 (2016), and her due process rights by affirming the order authorizing the involuntary administration of antipsychotic medications when the State had failed to attempt to obtain her informed consent. We agree.

I. LEGAL PRINCIPLES

¶ 11 A person "possesses a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs under the Due Process Clause of the Fourteenth Amendment." Washington v. Harper , 494 U.S. 210, 221-22, 110 S. Ct. 1028, 108 L. Ed. 2d 178 (1990). Moreover, an involuntarily committed person possesses a statutory right to refuse the administration of antipsychotic medication. Former RCW 71.05.215(1) ; former RCW 71.05.217(7).¹ But the right to refuse medication is not absolute. Our Supreme Court has recognized certain State interests that are sufficiently compelling to justify overriding a patient's objection to medical treatment, including the preservation of life, the protection of interests of innocent third parties, the prevention of suicide, and the maintenance of the ethical integrity of the medical profession. In re Det. of Schuoler , 106 Wash.2d 500, 508, 723 P.2d 1103 (1986).

¶ 12 The Due Process Clause of the United States Constitution requires procedural safeguards to ensure a person's interests are taken into account before authorizing involuntary medication. Harper , 494 U.S. at 233, 110 S.Ct. 1028. In Harper , the United States Supreme Court held that a Washington Department of Corrections policy for the involuntary administration of antipsychotic drugs to inmates satisfied constitutional due process requirements. 494 U.S. at 236, 110 S.Ct. 1028. The policy entitled an inmate who refused to take medication, which a psychiatrist determined necessary, to a hearing before a special committee consisting of a psychiatrist, a psychologist, and the associate superintendent of the special offender center. Harper , 494 U.S. at 215, 110 S.Ct. 1028. The inmate also had additional procedural rights surrounding the hearing, including the right to be informed of the tentative diagnosis, the factual basis for the diagnosis, and why the staff believed the medication to be necessary. Harper , 494 U.S. at 216, 110 S.Ct. 1028.

¶ 13 Following Harper , our legislature amended former RCW 71.05.215, which addresses a person's right to refuse antipsychotic medication and instructs the Health Care Authority (HCA) to adopt rules to carry out the purposes of the chapter. See former RCW 71.05.215 (1997). The amendment included a requirement that the HCA's rules include "[a]n attempt to obtain the informed consent of the person prior to administration of antipsychotic medication." Former RCW 71.05.215(2)(a). Former RCW 71.05.215(2)(e) also required that the HCA's rules include "documentation in the medical record of the attempt by the physician, physician assistant, or psychiatric advanced registered nurse practitioner to obtain informed consent and the reasons why antipsychotic medication is being administered over the person's objection or lack of consent."

¶ 14 Under former RCW 71.05.217(7)(a), a court may order the involuntary administration of antipsychotic medication if a petitioning party proves by clear, cogent, and convincing evidence that a compelling State interest exists to justify overriding the patient's lack of consent, the proposed treatment is necessary and effective, and no medically acceptable alternative forms of treatment are available. Former RCW 71.05.217(7)(b) also requires that the superior court make specific findings of fact regarding "the person's desires regarding the proposed treatment. If the patient is unable to make a rational and informed decision about consenting to or refusing the proposed treatment, the court shall make a substituted judgment for the patient as if he or she were competent to make such a determination."

II. MOOTNESS AND STANDARD OF REVIEW

¶ 15 As an initial matter, although LK's order has expired, this case is not moot because an order to involuntarily administer antipsychotic medication as part of LK's prior medical history may have collateral consequences in future proceedings. In re Det. of B.M. , 7 Wash. App. 2d 70, 76, 432 P.3d 459, review denied , 193 Wash.2d 1017, 444 P.3d 1185 (2019).

¶ 16 "On revision, the superior court reviews the commissioner's findings of fact and conclusions of law de novo based on the evidence and issues presented to the commissioner." Winter v. Dep't of Social & Health Serv. , 12 Wash. App. 2d 815, 829, 460 P.3d 667 (2020). "Under RCW 2.24.050, the findings and orders of a court commissioner not successfully revised become the orders and findings of the superior court." Maldonado v. Maldonado , 197 Wash. App. 779, 789, 391 P.3d 546 (2017). We review the superior court's ruling, not the commissioner's decision. See Flaggard v. Hocking , 13 Wash. App. 2d 252, 259, 463 P.3d 775 (2020). "When the standard is ‘clear,...