SUBSTITUTED JUDGMENT AND EXTRAORDINARY TREATMENT. Substituted Judgment--Overview

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1 SUBSTITUTED JUDGMENT AND EXTRAORDINARY TREATMENT Substituted Judgment--Overview An exceptin t the general apprach t judicially-rdered alternative decisin making cncerns medical prcedures and treatment mdalities (usually referred t as "extrardinary") that are cnsidered particularly intrusive, risky r restrictive f the incmpetent persn s liberty. Except in an emergency, nly a curt may authrize such a treatment r prcedure t be administered r withheld. Such authrizatin typically is sught in the Prbate and Family Curt Department, but may, in limited circumstances, be sught in the District Curt Department pursuant t G.L. c. 123, 8B (see belw). After finding the persn unable t cmpetently decide whether t accept r refuse the prpsed treatment r prcedure, the curt must determine what the persn wuld decide if he r she were cmpetent t d s. That is, the curt must substitute its judgment fr that f the incmpetent persn. Superintendent f Belchertwn State Sch. v. Saikewicz, 373 Mass. 728 (1977). Such determinatin can be made nly after a full hearing in which the putatively incmpetent persn is present and has the right t cunsel, at the Cmmnwealth s expense if he r she is indigent. The Substituted Judgment Determinatin The curt may nt authrize the administratin f a prpsed treatment merely upn a finding that the treatment is clinically desirable r likely t be efficacius (i.e., that such treatment wuld be in the ward s "best interests"). See In re Me, 385 Mass. 555 (1982) (sterilizatin); Guardianship f Re, 383 Mass. 415 (1981) (antipsychtic medicatin); Saikewicz (chemtherapy). Rather, the curt must determine, taking int accunt all f the factrs and cncerns that wuld likely serve t frm the particular ward s subjective perspective, which, if any, treatment the ward wuld cnsent t if he r she were cmpetent. See, e.g., Me; In re Spring, 380 Mass. 629 (1980); Saikewicz. Any such treatment, f curse, must cmprt with accepted prfessinal practice. In re McKnight, 406 Mass. 787 (1990). Applicability f Substituted Judgment Standard - Treatment Mdalities In determining whether the decisin t accept r refuse t accept the administratin f a particular treatment r prcedure may be made by a guardian r, rather, may nly be made by a curt by means f a substituted judgment determinatin, the Prbate and Family Curt must take int accunt: the extent f impairment f the [persn s] mental faculties; whether the [persn] is in the custdy f a state institutin; the prgnsis withut the prpsed treatment; the prgnsis with the prpsed treatment; the cmplexity, risk and nvelty f the prpsed treatment; its pssible side effects; the [persn s] level f understanding and prbable reactin; the urgency f decisin;

2 the cnsent f the [persn], spuse, r guardian; the gd faith f thse wh participate in the decisin; the clarity f prfessinal pinin as t what is gd medical practice; the interests f third persns; and the administrative requirements f any institutin invlved In re Spring, 380 Mass. 629 (1980). T date, included treatments and prcedures are: sterilizatin, In re Me, 385 Mass. 555 (1982); initiatin r remval f life-sustaining mechanisms, Brphy v. New England Sinai Hsp., 398 Mass. 417 (1986)(nutritin and hydratin); Spring (renal dialysis);saikewicz (chemtherapy); abrtin, In re Me, 31 Mass. App. Ct. 473 (1991); and antipsychtic medicatin, Rgers v. Cmmissiner f Dep t f Mental Health, 390 Mass. 489 (1983); Guardianship f Re, 383 Mass. 415 (1981). While there have been n judicial rulings regarding the applicability f the substituted judgment standard where the authrity t treat an incmpetent persn with electrcnvulsive therapy (ECT) r psychsurgery is sught, DMH regulatins define these mdalities as being highly intrusive r high risk interventins (presumably requiring a substituted judgment determinatin). 104 C.M.R (1)(b). Similarly, the District Curt Cmmittee n Mental Health and Retardatin has cncluded that a substituted judgment determinatin shuld be made where treatment with ECT is sught. The Appeals Curt in In re Dinnerstein, 6 Mass. App. Ct. 466 (1978) held that judicial authrizatin fr the entry f a "d nt resuscitate" (DNR) rder was unnecessary. Hwever, this decisin appears t be an aberratin. Indeed, the several divisins f the Prbate and Family Curts rutinely apply the substituted judgment standard where authrity t enter DNR rders are sught. See, als, Custdy f a Minr, 385 Mass. 697 (1982) (entry f DNR rder fr minr requires judicial substituted judgment determinatin). Applicability f Substituted Judgment Standard - "Passive Acceptrs" The prpriety f administering psychiatric treatment t a persn wh is nt capable f prviding infrmed cnsent, but wh is nt bjecting theret (i.e., the s-called passive acceptr ), while yet t be specifically cnsidered by the curts, is highly dubtful. See Rgers, 390 Mass. at 500 n.14 ("a patient s acceptance f antipsychtic drugs rdinarily des nt require judicial prceedings.... [H]wever, because incmpetent persns cannt meaningfully cnsent t medical treatment, a substituted judgment by a judge shuld be undertaken fr the incmpetent patient even if the patient accepts the medical treatment"). Applicability f Substituted Judgment Standard - Exceptins (Antipsychtic Medicatin). There are tw circumstances in which antipsychtic medicatin may be administered t an incmpetent persn withut first btaining judicial authrizatin:

3 "Plice Pwer" Exceptin. Where a persn s behavir places him- r herself r thers at imminent risk f serius physical injury, restraint may be administered in accrdance with applicable state law and regulatins. Rgers, 390 Mass. at 509. The particular frm f restraint utilized (i.e., physical, mechanical r chemical) must be the ptin that is least restrictive f his r her liberty. 104 C.M.R (6)(b); Rgers, at 510. Thus, the mere fact that a persn is acting "dangerusly" des nt justify the administratin f antipsychtic medicatin; nly where such "chemical restraint" is the least restrictive methd available t effectively and safely cntrl his r her behavir may it be used. See Rgers, at "Parens Patriae" Exceptin. The ther exceptin applies when a persn s refusal t accept prpsed treatment wuld result in the "immediate, substantial and irreversible deteriratin f a serius mental illness." Rgers, at The administratin f treatment in this circumstance, hwever, may be shrt-term nly; the persn may be treated nly in rder t stabilize him r her while judicial authrizatin is pursued. Rgers, at 512. Factrs fr Determining Substituted Judgment In rder t determine a ward s substituted judgment (i.e., determine what decisin the ward wuld make if cmpetent t d s), the curt must take evidence n each f the fllwing factrs and enter "specific and detailed findings demnstrating that clse attentin has been given [theret]." Guardianship f Re, 383 Mass. 415, 425 (1981). Again, this determinatin must be made frm the ward s perspective, taking int accunt all f the factrs that wuld be f significance, even if nly t the ward himself r herself. Re, at 444: Expressed preference "Great weight" must be given t any preference expressed by the ward regarding the prpsed (r similar) treatment, bth currently and in the past. Re, at If the ward expressed a preference when he r she was cmpetent, that preference, thugh nt dispsitive, shuld be accrded great deference. Guardianship f Linda, 401 Mass. 783 (1988) (preferences change ver time; curt must cnsider likely effect f new infrmatin r circumstances n previusly expressed chice). Religius cnvictins the curt must cnsider whether the ward adheres t (and, if s, the strength f) any religius tenets that may influence his r her decisin regarding the prpsed treatment. Re, at ; see, e.g., Nrwd Hsp. v. Munz, 409 Mass. 116 (1991) (bld transfusin f Christian Scientist). Familial relatinship the curt must cnsider the ward s relatinship with his r her family and the impact that the decisin n the treatment may have n this relatinship. Re, at It is the ward s perspective n such matters, and nt the family s, that must be cnsidered; the wishes f the family are relevant nly t the extent that the ward himself r herself wuld take their wishes int accunt in making his r her chice. See, e.g., In re R.H., 35 Mass. App. Ct. 478, (1993). Side effects and alternative treatment mdalities the curt must cnsider the pssible adverse side effects, if any; hw likely it is that these side effects will

4 ccur; and, if they d ccur, their likely severity. Re, at 447. The curt shuld als cnsider any alternative treatments, their risks and their benefits. Cf. In re Me, 385 Mass. 555 (1982); Saikewicz, 373 Mass. 728, 757 (1977). Cnsequences if treatment refused It is fair t assume that as a persn s prgnsis withut treatment wrsens, the mre likely it is that he r she will accept such treatment. Hwever, the curt must determine whether this assumptin hlds in light f the ward s unique perspective. Re, at 447; see, e.g., In re Byd, 403 A.2d 744, 752 (D.C. App. 1979) (even in life-r-death situatin, ne s religin may dictate a "best interests" antithetical t getting well). Prgnsis with treatment as a general rule, as the prbability increases that a prpsed treatment will imprve a persn's cnditin, s t will the likelihd that he r she will accept such treatment, even treatment that is intrusive r likely t cause adverse side effects. Hwever, it is nt at all unusual fr clinicians t disagree abut "the prbability f specific benefits being received by a specific individual upn administratin f a specific treatment. [Therefre, b]th f these factrs[,] the benefits sught and the degree f assurance that they actually will be received[,] are entitled t cnsideratin." Re, at Other relevant factrs In additin t the freging, the curt must cnsider any ther factrs that the ward wuld be likely t take int accunt if he r she were cmpetent t make the decisin at issue. Guardianship f Brandn, 424 Mass. 482, 487 (1997); Re, at 448. Fr example, in a criminal prceeding, a defendant asserting his r her lack f criminal respnsibility has the right t appear befre the factfinder in an unmedicated r natural cnditin. Cmmnwealth v. Luraine, 390 Mass. 28 (1983). Therefre, a curt hearing a petitin seeking authrity t administer antipsychtic medicatin t a criminal defendant shuld take int accunt the impact f that decisin upn the criminal prceeding frm the defendant s perspective. Standard f Prf The applicable standard f prf as t bth cmpetency and substituted judgment is prepnderance f the evidence. Hwever, because a finding f incmpetency seriusly impinges upn a ward's rights, and because substantial liberty interests are implicated in the administratin f highly intrusive treatments such as antipsychtic medicatin, the curt must carefully cnsider the evidence and enter specific written findings n the ward s decisin-making ability and the substituted judgment factrs described abve. Guardianship f De, 411 Mass. 512, 524 (1992); Re, at 425. This prcess is ften referred t as the heightened prepnderance f the evidence standard. The Treatment Plan After the curt has fund a persn t be incmpetent and has determined that he r she wuld accept the prpsed treatment if cmpetent, it must apprve a specific, written treatment plan. Rgers; Re. The plan shuld clearly describe the authrized treatment and dsage ranges, any prcedures r treatments that may be used t cunteract ptential side effects, and reasnably freseeable alternative treatments.

5 Mnitring the Treatment The curt als must establish a prcess by which the implementatin f the apprved treatment plan is t be mnitred. Rgers; Re (antipsychtic medicatin). See Prbate and Family Curt Frm CJ-P 115, Appintment f Rgers Mnitr; Guardianship f Brandn, 424 Mass. 482 (1997). Where a guardian has been previusly appinted t make ther decisins fr the ward, the curt ften will request that he r she als serve as the mnitr fr the treatment rder. A guardian wh als serves in this capacity is ften referred t as a "Rgers guardian," a term that has resulted in much cnfusin and shuld be avided. As a mnitr, the guardian has n decisin-making authrity whatever. Rather, it is the curt and the curt alne that may authrize the administratin f antipsychtic medicatin and ther extrardinary treatments. Expiratin f the Order and Peridic Review Since a persn's treatment needs (and, perhaps, cmpetency), are likely t change ver time, particularly where treatment has had its intended therapeutic effect, substituted judgment rders and treatment plans are nt t be effective indefinitely. Rather, the curt must peridically review the implementatin f the apprved treatment plan and set an expiratin date. Guardianship f Weedn, 409 Mass. 196 (1991). The purpse f a peridic review is t determine whether the persn's cnditin and circumstances have substantially changed since the rder was issued, such that, if the client were cmpetent, he r she wuld n lnger cnsent t the previusly authrized treatment. Guardianship f Brandn, 424 Mass. 482 (1997).