PETER BARD v. COMMONWEALTH OF KENTUCKY
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RENDERED:
February 6, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
MODIFIED: April 24, 1998; 10:00 a.m.
NO. 96-CA-0796-MR
PETER BARD
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE WILLIAM S. COOPER, SPECIAL JUDGE
ACTION NO. 93-CR-2373
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
* * * * * * *
BEFORE:
ABRAMSON, DYCHE, and SCHRODER, Judges.
ABRAMSON, JUDGE:
Peter Bard, a patient committed to Central
State Hospital, appeals from a March 8, 1996, Judgment of
Jefferson Circuit Court authorizing his doctor to medicate him
forcibly and to implement a treatment plan for schizophrenia.
Bard maintains that circuit court does not have jurisdiction to
entertain his doctor's petition seeking such authority.
He also
complains that the trial court's failure to provide him with a
guardian for the hearing on this matter and its premature
authorization of one of the requested medications violated
statutory provisions governing non-consensual medical treatment.
Believing that the circuit court acted within its jurisdiction
and that it did not misconstrue applicable law, we affirm.
In October 1993, the Jefferson County Grand Jury
indicted Bard for murder.
A special judge was appointed to hear
the matter, and in September 1995, the judge determined, pursuant
to KRS 504.110(2), that Bard, who suffers from schizophrenia, was
incompetent to stand trial, was unlikely to attain competency in
the foreseeable future, and was in need of hospitalization at a
psychiatric facility.
Accordingly, the trial court ordered that
the indictment against Bard be dismissed without prejudice and
that Bard be committed to Central State Hospital, where he was
admitted in October 1995.
In January 1996 Bard's treating
psychiatrist petitioned circuit court for authority to administer
to Bard, forcibly if necessary, anti-psychotic medications-Risperidone and/or Haldol--and other treatments intended to
ensure the safety and enhance the effectiveness of those
medicines.1
On March 1, 1996, the trial court convened a
hearing on this petition.
The petitioner, Walter Butler, M. D.,
the director of Central State Hospital's Grauman Unit, testified
that Bard suffers from acute and probably chronic schizophrenia,
and that he had refused to take the anti-psychotic medicine
1
The judgment authorizes the administration of as much as 10
mg per day orally of Risperidone, as much as 40 mg per day orally
or intra-muscularly of Haloperidol, and as much as 450 mg per
month intra-muscularly of Haloperidol Decanoate. The latter two
medicines are commonly referred to as Haldol. The judgment also
authorizes the administration of Cogentin and Artane, medicines
designed to lessen the side effects of the anti-psychotic drugs,
and authorizes routine physical exams, including x-rays, to
facilitate monitoring the drugs' effects.
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offered to him.
Dr. Butler further testified that Bard was
persistently delusional, that owing to the paranoid, grandiose,
and violent nature of his delusions he posed a significant threat
to himself and others, and that, although his behavior had thus
far been stable in the highly structured hospital environment, he
was not apt to experience genuine relief from his symptoms or to
become capable of living with less supervision except through the
type of drug therapy recommended.
Two other doctors testified.
They corroborated Dr. Butler's assessment of Bard and endorsed
his treatment recommendation.
Bard challenged both the propriety of the proposed
treatment and the ostensible justification for its being imposed.
He elicited testimony from the doctors concerning the risk of
damaging side effects posed by Risperidone and Haldol and the
limited effectiveness of those drugs.
both imperfections:
The doctors acknowledged
there are significant side effects
associated with these and other anti-psychotic drugs, and the
drugs have provided better results for some patients than for
others.
Nevertheless, on the basis of published studies and
their own observations, the doctors insisted that the potential
and likely benefits to Bard more than justified the risks
involved.
Bard also challenged the asserted justification for
imposing this treatment involuntarily.
He argued that his
behavior at the hospital provided no ground for finding that he
was a menace to anyone, and that the real albeit unstated reason
for the state's desire to medicate him was to render him
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competent for trial, a reason, he asserted, not sufficiently
compelling to override his fundamental right to be free from
unwanted therapy.
The trial court, however, relied on the
doctors' opinions that, left untreated, Bard's delusions
(centering on global war, bloodshed, and death) created an
unacceptable risk that he would eventually behave violently,
particularly if he were removed from the Grauman Unit's regulated
environment.
Finally, Bard objected to the proceedings on the
grounds summarized above.
his appeal.
Those grounds provide the basis for
He asserts that pursuant to KRS 202A.196(3),
district rather than circuit court has exclusive jurisdiction
over forcible medication petitions such as Dr. Butler's.
He
claims that KRS 503.110(4) mandates the appointment of a guardian
in this situation and prohibits treatment absent the guardian's
consent.
He also claims that, because his doctors never
specifically offered him Haldol, he never specifically refused
that medication and thus the court's order authorizing Haldol
injections was premature, in violation of KRS 202A.196(2).
We
review the trial court's interpretation of these statutes de
novo.
Commonwealth v. Collins, Ky., 821 S.W.2d 488 (1991).
As Bard acknowledges, the jurisdictional issue has
previously been addressed.
In Tolley v. Commonwealth, Ky., 892
S.W.2d 580 (1995), our Supreme Court considered a virtually
identical scenario in which the circuit court, pursuant to KRS
504.110, determined that a felony defendant was incompetent for
trial, then subsequently ordered that he be committed to Central
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State Hospital and involuntarily treated with anti-psychotic
medicines.
In upholding the circuit court's authority to make
the latter determinations, the Supreme Court distinguished
commitment and medication proceedings that arise in the context
of a felony indictment from such proceedings arising in a purely
civil context.
Jurisdiction in the former instance is in circuit
court pursuant to KRS 23A.010, KRS 24A.110, and KRS 504.110 (or
KRS 504.030).2
Contrary to Bard's interpretation, we do not believe
that circuit court jurisdiction is overridden by KRS Chapters
2
KRS 23A.010 and KRS 24A.110 give circuit court jurisdiction
over felonies. KRS 504.110 addresses the "[a]lternative handling
of defendant depending on whether he is competent or incompetent
to stand trial:"
(1) If the court finds the defendant incompetent
to stand trial but there is a substantial
probability he will attain competency in the
foreseeable future, it shall commit the
defendant to a treatment facility or a forensic
psychiatric facility and order him to submit to
treatment for sixty (60) days or until the
psychologist or psychiatrist treating him finds
him competent, whichever occurs first, except
that if the defendant is charged with a felony,
he shall be committed to a forensic psychiatric
facility unless the secretary of the Cabinet
for Human Resources or the secretary's
designee determines that the defendant shall
be treated in another Cabinet for Human
Resources facility. Within ten (10) days of
that time, the court shall hold another
hearing to determine whether or not the
defendant is competent to stand trial.
(2) If the court finds the defendant incompetent to
stand trial but there is not substantial
probability he will attain competency in the
foreseeable future, it shall conduct an
involuntary hospitalization proceeding under
KRS Chapter 202A or 202B.
(3) If the court finds the defendant competent to
stand trial, the court shall continue the
proceedings against the defendant.
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202A and 202B, which address matters related to civil involuntary
hospitalizations, nor do we believe that KRS 504.110(2)
incorporates those chapters' provisions for district court
jurisdiction.
See, e.g., KRS 202A.014; KRS 202A.196(3).3
Those
provisions are addressed to the purely civil proceedings
initiated in district court.
Rather, KRS 504.110(2) directs the
circuit court to incorporate Chapter 202A's substantive standards
and procedural safeguards,4 and thus by implication, as well as
for the sake of efficiency and consistency, it contemplates that
3
KRS 202A.014. Jurisdiction.
All proceedings for the involuntary
hospitalization of mentally ill persons
shall be initiated in the District Court of
the county where the person to be hospitalized
resides or in which he may be at the time of the
filing of a petition.
KRS 202A.196. Hospital review committee; treatment plan.
(3)
If the patient still refuses to participate in
any or all aspects of his individual treatment
plan, the hospital may petition the district
court for a de novo determination of the
appropriateness of the proposed treatment.
Within seven (7) days, the court shall conduct
a hearing, consistent with the patient's rights
to due process of law, and shall utilize the
following factors in reaching its determination:
(a) Whether the treatment is necessary to protect
the patient or others from harm;
(b) Whether the patient is incapable of giving
informed consent to the proposed treatment;
(c) Whether any less restrictive alternative
treatment exists; and
(d) Whether the proposed treatment carries any
risk of permanent side effects.
4
But see Turner v. Commonwealth, Ky., 860 S.W.2d 772 (1993)
(finding the standard of proof in civil proceedings under KRS
Chapter 202A inapplicable to competency and involuntary
medication decisions under KRS 504.060).
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the circuit court will retain jurisdiction over commitment and
treatment matters which arise in the context of a felony
prosecution.
Cf. KRS 202A.201 (creating administrative
jurisdiction over commitment and treatment proceedings involving
inmates); see Tolley, supra; Schuttenmeyer v. Commonwealth, Ky.
App., 793 S.W.2d 124 (1990) (same); and see Turner v.
Commonwealth, Ky., 860 S.W.2d 772 (1993) (further distinguishing
civil proceedings from those arising within a criminal action).
For these reasons, we reject Bard's contention that circuit court
lacked jurisdiction to order him to participate in his prescribed
treatment plan.
We also reject his assertion that this result so
misconstrues the statutes involved as to be unconstitutional.
We are similarly unpersuaded by Bard's claim that the
trial court erred in failing to appoint a guardian for him.
He
relies on KRS 503.110(4), a part of the chapter concerned with
principles justifying the use of force.
KRS 503.110(4) provides
as follows:
(4)
The use of physical force by a defendant upon
another person is justifiable when the defendant
is a doctor or other therapist or a person
assisting him at his direction, and:
(a) The force is used for the purpose of
administering a recognized form of treatment
which the defendant believes to be adapted
to promoting the physical or mental health
of the patient; and
(b) The treatment is administered with the consent
of the patient or, if the patient is a minor
or a mentally disabled person, with the
consent of the parent, guardian, or other
person legally competent to consent in his
behalf, or the treatment is administered in
an emergency when the defendant believes
that no one competent to consent can be
consulted and that a reasonable person,
wishing to safeguard the welfare of the
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patient, would consent.
As Bard correctly asserts, this statute derives from
the general rule that an individual may not be subjected to
medical treatment against his or her will.
to this rule, however.
There are exceptions
KRS 503.110(4) itself provides for
surrogate consent in the cases of minors and incompetents and
further provides for non-consensual treatment in emergencies.
We
agree with the trial court that KRS 202A.196 (via KRS 504.110 in
this instance) creates an additional exception to the general
rule.
That statute provides for non-consensual treatment upon a
finding by a proper court that the proposed treatment is
medically appropriate and is necessary to protect the patient or
others from harm.
504 U.S.
See note 3, supra; see also Riggins v. Nevada,
, 112 S. Ct. 1810, 118 L. Ed. 2d 479 (1992) (holding
that federal due process requires a finding that the proposed
treatment is medically appropriate and that it serves a state
interest important enough to override the patient's interest in
avoiding unwanted treatments); and cf. Turner v. Commonwealth,
supra, (upholding, pursuant to KRS 504.110(1), non-consensual
treatment with anti-psychotic drugs as a means of rendering the
patient competent to stand trial).
Because KRS 202A.196 provides
for treatment against the patient's will and without his consent,
the surrogate consent of a guardian is likewise not required.
This is not to say that the trial court may not, upon a proper
motion, appoint a guardian for an incompetent patient facing a
forced medication petition; such an appointment may well provide
a valuable safeguard in certain cases.
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KRS 503.110(4), however,
did not require the trial court to appoint, sua sponte, a
guardian for Bard.
Finally, relying on KRS 202A.196(2)5 Bard contends that
he cannot be said to have refused Haldol because his doctors
never specifically offered it to him, always offering Risperidone
instead.
Thus, he claims, one of the necessary conditions for a
forced treatment order was not established, and the trial court's
order is invalid, at least to the extent it authorizes Haldol.
We disagree.
Dr. Butler testified that he favored giving
Risperidone, a relatively new anti-psychotic medication, because
of clinical evidence that it causes fewer side effects than
Haldol, one of the standard treatments.
Unlike Haldol, however,
Risperidone is not available in an injectable form and so may be
administered only with the patient's cooperation.
On numerous
occasions, he said, he and other staff persons had urged Bard to
take Risperidone, but Bard had steadfastly refused, making clear
his unwillingness to be treated with that or any other antipsychotic medication.
The doctor's petition requested that Bard
be ordered to take Risperidone, but also requested that, should
5
That statute provides as follows:
Upon the refusal of an involuntary patient to
participate in any or all aspects of his treatment
plan, the review committee shall examine the
appropriateness of the patient's individual
treatment plan. Within three (3) days of the
refusal, the review committee shall meet with
the patient and his counsel or other representative
to discuss its recommendations. (emphasis added).
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Bard refuse, the doctor be authorized to administer Haldol
forcibly.
The trial court approved these requests.
Even if we agreed with Bard that KRS 202A.196(2)
required a patient's specific rejection of each aspect of a
treatment plan before that aspect could be included in an
involuntary treatment order, we would agree with the trial court
that Dr. Butler's testimony adequately established Bard's
rejection of all anti-psychotic medicines, including Haldol.
We
believe, moreover, that the statute requires no such showing.
Rather, upon a showing that the patient refuses to cooperate with
any significant aspect of a treatment plan, KRS 202A.196
authorizes the court to order compliance with the plan as a
whole--provided that the plan meets the other statutory criteria
of appropriateness and the proposed treatment is necessary to
further a sufficiently important state interest, issues Bard has
not raised in this appeal.
Here, Bard admittedly refused Risperidone and thereby
rejected what his doctors regarded as the crucial aspect of his
proposed treatment: anti-psychotic medication.
The trial court
did not err, therefore, by authorizing a treatment plan which
would ensure that medication, either Risperidone or Haldol, could
be administered.
For these reasons, we affirm the March 8, 1996,
Judgment of Jefferson Circuit Court.
SCHRODER, JUDGE, CONCURS.
DYCHE, JUDGE, DISSENTING.
from the majority opinion.
I must respectfully dissent
The Jefferson Circuit Court was
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without subject matter jurisdiction over this proceeding.
The
General Assembly has placed exclusive jurisdiction over such
actions in the district courts of this Commonwealth.
I find no "administrative inconvenience" to the courts
or the parties.
It would be a simple matter for the circuit
court to remand an action such as this to the district court for
purposes of a KRS 202A hearing, once the circuit court has found
the defendant incompetent to stand trial.
A similar procedure is
currently used when a grand jury indicts a defendant on a
misdemeanor charge not coupled with a felony.
I would vacate the order of the Jefferson Circuit
Court, and remand this action to the Jefferson District Court for
further proceedings pursuant to KRS 202A.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
J. David Niehaus
Daniel T. Goyette
Office of the Public Defender
Louisville, Kentucky
A. B. Chandler III
Attorney General
Martin Z. Kasdan, Jr.
Assistant Jefferson County
Attorney
Louisville, Kentucky
Samuel J. Floyd, Jr.
Assistant Attorney General
Frankfort, Kentucky
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