Legal News
Suit Seeks to Overturn Policy on Forced-Medication Appeals
Psychiatric News
Volume 45 Number 17 page 2-26

New Jersey psychiatric hospital patients who do not want the prescription medications their physicians order them to take could appeal to a judge psychiatrists' decisions to medicate them involuntarily if a new lawsuit succeeds in amending the state's policy.

Patient advocates who filed a federal lawsuit in New Jersey in August said that the state has a far more restrictive appeals process for public and private psychiatric hospital patients who object to being involuntarily medicated than most other states and that such a limited right to appeal can seriously impact the well-being of psychiatric patients. New Jersey's rules allow a patient in a public or private hospital to appeal medication decisions only to the hospital administrator, who may opt to use an outside consultant.

Conversely, 29 states require a judge's order to administer involuntary medication, according to the suit. Five other states leave the decision to an individual or panel outside the hospital. Additionally, some states provide an advocate to represent the patient in hearings on forced medication.

New Jersey's internal appeal process, according to the lawsuit by Disability Rights New Jersey—a federally funded patient-advocacy group—is routinely ignored by state hospital staff, and many psychiatric patients in private and local public hospitals are given no opportunity to appeal medication decisions.

"This case is long overdue," said Susan Stefan, formerly an attorney for the Center for Public Representation, in an interview with Psychiatric News. "New Jersey is way out of step with the rest of the country in the right to refuse medications."

New Jersey's limited appeals process dates from the early 1980s, Stefan said, when the state was among the first to establish the right of psychiatric hospital patients to appeal mandatory prescribing. However, the state never strengthened patient-appeal rights in the intervening years, and most other states have since surpassed it in terms of patients' rights to appeal medication orders.

The rate of internal appeals by psychiatric hospital patients was about 20 percent at one state facility, according to the suit, but many more patients protested the medications they are ordered to take without going through the formal appeals process. Patients' avoidance of the hospital's internal appeals process often was based on fear that they would receive painful injections because they exercised their appeals right or retaliatory extensions of their hospital stays. Other patients, according to the lawsuit's supporters, were too medically sedated to object.

Such limitations on patient-appeal rights are based on the mistaken belief that every patient will object to his or her medications if given the opportunity, Stefan said. But in her experience representing such patients, nearly all are open to some medication but object to specific medications that they believe carry painful or debilitating side effects.

"There can be no dispute that psychotropic medications can be useful in controlling the symptoms of some forms of mental illness, in particular schizophrenia," said the suit filed by the advocacy group. "But there can also be no dispute that these medications frequently cause severe side effects, some of which can be irreversible."

Some New Jersey psychiatrists agree that the current appeals process for forced-medication orders may need to be reviewed, but they are concerned about unintended consequences that changes may bring.

For instance, the implementation of judicial review for all dosing appeals might give the final decision to someone without medical knowledge. "It's better to have a medical professional [decide the appeal] than leave it to a judge," said Margaret Tompsett, M.D., president of the New Jersey Psychiatric Association (NJPA), in an interview with Psychiatric News.

Additionally, even an appeal review handled by a psychiatrist unaffiliated with the hospital can add delays to needed treatment due to logistical obstacles. Some psychiatrists have suggested that the state could minimize such delays through the use of telemedicine, she noted.

NJPA leaders are likely to meet later this year to discuss whether the current appeals process is appropriate, whether it is uniformly adhered to, and whether changes are needed to it.

Psychiatrists who treat involuntarily hospitalized patients "are constantly trying to balance the patient's rights against the rights of society," Tompsett said.

The need for reform of the medication appeals process, according to the suit, is justified as well by a recently concluded Department of Justice investigation into the medication practices in New Jersey's largest state psychiatric facility, Ancora Psychiatric Hospital. The investigators concluded that the hospital's staff "substantially deviate from generally accepted professional standards," including extensive use of polypharmacy, or repeated dosing with multiple psychotropic medications, and the health risks that those practices may entail.

Among the many recommendations in the Department of Justice's investigation report was that the hospital "ensure that psychotropic medication is only used in accordance with generally accepted professional standards and that it is not used as punishment, in lieu of a treatment program, for behavior control, in lieu of a psychiatric or neuropsychiatric diagnosis, or for the convenience of staff."

"We do have a reasonable process in place in New Jersey, but then the question is whether that is being appropriately utilized," Tompsett said.

The text of the lawsuit is posted at <www.drnj.org/involuntary_medication_complaint.pdf>.blacksquare

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