FORCED MEDICATION OVERVIEW: Nancy Svirida, Staff Attorney, Disability Law Center, January 31, 2006
Topic
Informed
Consent
Chemical
Restraint
Emergency
Treatment
Rogers
Order
Health Care
Proxies
Explanation
Consent, by a person with capacity to give consent,
to a procedure or course of treatment, which is given
after an explanation of the nature of the condition
requiring treatment, need for treatment, risks and
benefits of treatment, alternatives to treatment, risk
and benefits to alternatives, and the existence of the
right to accept or refuse treatment.
Medication over objection in instances “such as the
occurrence of, or serious threat of, extreme violence,
personal injury, or attempted suicide.” GL c. 123 s.
21.
Person with mental illness is incompetent, and
“immediate, substantial and irreversible deterioration
of the person’s medical condition will occur unless he
or she is medicated over objection.” GL c. 123 s. 8B
Court Ordered list of medication with dosages that
may be used for treatment over individual’s
objection. Court determines individual is
incompetent and applies “substituted judgment”
standard by considering the client’s preferences
(currently and in the past), client’s religious tenets,
impact upon client’s relationship with family from
client’s perspective, probability and severity of
adverse side effects, alternative treatment modalities
(if any), prognosis with and without proposed
treatment, and other pertinent considerations (if
competent).
Individual you choose, when you are competent,
makes medical treatment decisions for you if, and
when, you are no longer competent to do so.
Implications
Presumption of competency and
patient’s right to accept and/or
refuse treatment.
Client may be immediately
medicated by injection over
objection. Detailed medical
records should be maintained.
Client may be immediately
medicated by injection over
objection. Detailed medical
records should be maintained.
Dr. must proceed to Court for
another dose.
Individual found incompetent and
meets substituted judgment
standard. Must be periodically
reviewed and strictly followed.
District Court Rogers: Duration of
order is length of commitment
order pursuant to c. 123, ss. 7 &
8.
Probate Court Rogers: Follows
individual in community.
Guardian monitors but does not
make decisions. Must be
reviewed annually and include a
termination date.
May negate the need for future
substituted judgment
determinations by the Court.
Advocacy
Ensure risks and benefits are explained
and client is offered opportunity to
choose.
If competency to choose is challenged,
must immediately proceed to court,
unless emergency.
Consider complaint to DMH, HRO,
and/or legal advocacy organization such
as DLC (800-872-9992) or MHLAC (800342-9092).
Consider complaint to DMH, HRO,
and/or legal advocacy organization such
as DLC (800-872-9992) or MHLAC (800342-9092).
May contact CPCS (617-482-6212) to
have attorney appointed to represent
initially and in an appeal or request for
review de novo in Superior Court. Client
must prove competency via medical
opinion in a hearing before the Court.
Obtain sample proxy forms from legal
advocacy organization such as MHLAC
(800-342-9092). Client should sign
release form in hospital as well as proxy
form. Release allows hospital to contact
individual’s agent.