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;
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. 27.10(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:
"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. 27.12(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 507 11. "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 511 12. 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 444 45. 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 445 46; 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 446 47. 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, 488 89 (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
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 447 48. 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.
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).