NJ’s Forced Medication Policy Upheld on Appeal

(CN) - Even when there's no emergency, New Jersey can make patients committed to state mental institutions take psychotropic drugs, the Third Circuit ruled.

New Jersey operates four psychiatric hospitals that house patients who have been civilly committed, patients who have been found incompetent to stand trial, and patients found not guilty by reason of insanity.

At any given time, a "significant" number of committed patients are on "refusing status" for refusing to take their prescribed psychotropic medications, often complaining of serious side effects such as anxiety, sexual dysfunction, involuntary muscle spasms.

New Jersey's policy is to forcibly medicate patients who refuse to take their prescribed drugs, but the patient is entitled to a medication-review hearing.

At such hearings, held at the hospital, the patients can testify, present witnesses, and offer expert testimony, if they are willing to foot the bill. They can appeal the panel's decision to the medical director.

Disability Rights New Jersey challenged the policy in federal court, arguing that patients should be allowed a judicial hearing before they can be forcibly medicated in nonemergency situations. The nonprofit argued that the policy violates the Americans with Disabilities Act (ADA), and denies patients their constitutionally protected due process rights.

A federal judge sided with the state, however, and the Third Circuit affirmed Tuesday.

"The fatal defect in Disability Rights' ADA claim is that the right [to judicial review before medication is forcibly administered] does not exist in New Jersey for nondisabled people, which means the denial of that right to psychiatric patients is not discriminatory," Judge Thomas Hardiman wrote for a three-judge panel in Philadephia. "All New Jersey citizens are entitled to the judicial processes attendant to civil commitment. After that point, however, and once an individual's care is entrusted to the State, there are no additional premedication judicial processes available to anyone."

In ripping the through the constitutional claims, Hardiman pointed to Supreme Court precedent supporting the right of states to forcibly medicate prisoners for the safety and security of other prisoners.

While patients are not prisoners, "it would be passing strange if due process were to permit the state to forcibly medicate a criminal whose conviction bears no suggestion of physical dangerousness without a judicial hearing, while mandating judicial hearings for mentally ill people who have already been adjudicated to be so dangerous as to require civil commitment," Hardiman said.

The court did, however, carve out an exception for patients whom a court has found not to require continued commitment, but who remain at the hospital pending transfer.

"When New Jersey applies the Policy to a CEPP [conditional extension pending placement] patient, it effectively vacates a court's prior determination that the patient is not dangerous," Hardiman said. "In such circumstances, due process may require the hospital and the commitment court to agree that the basis for a previous judicial finding of nondangerousness no longer exists."

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