Dept. of Health v. Kelly

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Departm ent of He alth and M ental Hygien e v. Antho ny Kelly, No. 47, September Term, 2006. STATUTORY INTERPRETATION FORCIBLE MEDICATION: Appellee, Ant hon y Kelly, was adjudged incompetent to stand trial in the Circuit Court for Montgom ery County because his delusional disorder prevented him from understanding the adversarial nature of the proceedings against him, and precluded him from assisting in his criminal defense. Kelly was committed to a state health institution for treatment, where the Department of Health and M ental Hygien e sought to forcibly medic ate him . The Department convened a Clinical Review Panel, w hich approve d the forc ible m edic ation , a de cisio n wh ich w as up held by an ALJ. The Circuit Court for Baltimore City reversed, and the Court of Appeals affirmed, holding that Section 10-708 (g) of the Health-General Article of the Maryland Code (1982, 2005 Repl. Vol.) requires the State to p rove that an individual, b ecause of his mental illne ss, is dangero us to himself or others within a state institution bef ore it may forc ibly administer medication. Because there was nothing in the record indicating tha t Kelly was, be cause of h is mental illnes s, dangero us to himse lf or others within the state institution wherein he was being held, the C ourt determ ined that he could not be forcibly medicated pu rsuant to Section 10-70 8 (b)(2) and (g). IN THE COURT OF APPEALS OF MARYLAND No. 47 September Term, 2006 DEPARTMENT OF HEALTH AND MENTAL HYGIENE v. ANTHONY KELLY Bell, C.J. Raker *Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Battaglia, J. Wilner and H arrell, JJ., Concur. Filed: March 14, 2007 *Wilner, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion. The case sub judice presents this Court with the task of determining whether Section 10-708 (g) of the H ealth-Gen eral Article o f the Ma ryland Code (1982, 20 05 Rep l. Vol.) 1 1 Section 10 -708 prov ides in pertine nt part: (b) Medication authorized. Medication may not be administered to an individual who refuses the medication, except: (1) In an emergency, on the order of a physician where the individual presents a danger to the life or safety of the individual or others; or (2) In a nonemergency, when the individual is hospitalized involuntarily or committed for treatment by order of a court and the medicatio n is approved by a panel under the provisions of this section. *** (g) Approval of medication by panel. The panel may approve the administration of medication or medications and may recommend and approve alternative medications if the panel determine s that: (1) The medication is prescribed by a psychiatrist for the purpose of treating the ind ividual's mental disorder; (2) The administration of medication represents a reasonab le exercise of professional judgment; and (3) Without the medic ation, the indiv idual is at substantial risk of continu ed hospitaliz ation becau se of: (i) Remaining seriously mentally ill with no significant relief of the mental illness symptoms th at cause the individual to be a danger to th e individua l or to others; (ii) Remain ing seriously m entally ill for a signif icantly longer period of time with mental illness symptoms that cause the individual to be a danger to the individual or to others; or (iii) Relapsing into a condition in which the individual is in danger of serious physical harm resulting from the individual s inability to provide for the individu al s essential human needs of heal th or safe ty. (continued...) requires the State to p rove that an individual, b ecause of his mental illne ss, is dangero us to himself or others wit hin a state institution before it may forcibly administer medication. Because we hold that Section 10-708 (g) does so require, we shall affirm the judgment of the Circ uit C ourt for B altim ore C ity. I. Introduction Between 2002 and 2003, Anthony Kelly was charged in four indictments with two counts of murder, both capital offenses, two counts of first-degree rape, one count of firstdegree burg lary, o ne co unt o f sec ond-deg ree b urglary, tw o counts of ro bbery with a dangerous and deadly weapon, one count of first-degree assault, three counts of theft over five hundred dollars, one count of theft under five hundred dollars, three counts of the use of a handgun in a crime of violence, and one count of transporting a handgun by vehicle. Kelly was represented by the Office of the Public Defender with respect to three of the indictm ents, bu t represe nted him self w ith respe ct to the c harges in the fo urth ind ictmen t. During a pre-trial hearing on July 18, 2003, Kelly moved to discharge his attorneys, contending that he would rather represent himself because he had lost confidence in them. As a result of this motion, Judge Durke G. Thompson of the Circuit Court fo r Montgom ery County held a competency hearing on Septemb er 16, 2003 and referre d Kelly to the Clifton T. Perkins Hospital, a maximum security psychiatric hospital operated by the Maryland (...continued) Marylan d Cod e (1982 , 2005 R epl. Vo l.), Sectio n 10-7 08 of th e Hea lth-Ge neral A rticle. All reference s to the M aryland Cod e are to the 2 005 Re placemen t Volume of the Health-General Article unless otherwise noted. -2- Department of Health and Mental Hygiene, for evaluation. Kelly was evaluated b y Dr. Rosem ary Carr-M alone, a Fo rensic Psychiatry Fellow at Perkins Hosp ital, and D r. Lisa H overm ale, a liaison with deve lopmenta lly disabled patien ts at Spring field Sta te Hos pital. Th e com petenc y evaluati on, which was m emorialized in a Pretrial Psychiatric Ev aluation R eport, was completed on February 5, 2004, and concluded that Kelly had a mental disorder that influenced his thinking and his behavior and that he was not competent to stand trial. The report fou nd that altho ugh Ke lly was com petent eno ugh to understand the nature of the proceedings against him , i.e., the charges against him, the possible penalties he faced, the roles of the judge, jury, witnesses, and attorneys, and the potential plea options, he did not understand the adversarial nature of those proceedings and could not assist in his defense: Kelly was not malingering symptom s of a mental illness. In fact, he denied having a mental illness, or having any symptoms or behaviors suggesting that h e had a m ental illness. K elly wanted to be foun d compe tent to stand trial, and he believed that he was com pete nt. D espite Kelly s state men ts to the co ntrary, Kelly did not understand the adversarial object of the c ourt system, and was unable to assist with his defense, as evidenced by Kelly s evaluations at [Perkins Hospital], his writings, and his behavior. K elly s thinking an d behavio r were pro foundly influenced by his persecutory and grandiose delusional beliefs to the point of interfering with his ability to understand the adversarial object of th e proceed ings, and to a ssist with his defense by planning a legal strategy and making reasoned choices. Therefo re, to a reason able degree of m edic al ce rtain ty, Kelly understood the nature of the proceedings against him. However, he was unable to understand the object of the proceedings against him, or assist in his defense, due to delusional symptoms deriva tive of a mental disorder. -3- The report also co ncluded th at Kelly was considered dang erous, because he had a history of assa ultive an d violen t behav ior, and was c harged with se rious cri mes. Judge Thompson determined that Kelly was not competent to stand trial on June 3, 2004, and subse quently issued a Memorandum Opinion Upon Competency of the Defendant which determined that Kelly s thinking on critical issues surrounding his case merited the inescapable conclusion that he was delusional, and that although his intentions to assist his case were meritorious, his actions had been co unter-prod uctive to his own r eprese ntation. With respect to Kelly s release on b ail, the court pre sumed th at he was dangero us to himself or others: This Court m ay consider the release of th e defend ant on a bail bond if the defendant is deemed to be not dangero us as a result of a mental disorder or retardation to himself, to others, or to the property of others. G iven the gra vity of the charges pending against the defendant, it is fair to say that, if proven, the charged actions of the defen dant repres ent a risk to the public of the most dangerous degree. C onse quently, the Court grants defen dant s counsel leave to request a hearing, if they so desire, to determine the degree of dangerousness the defendant s release wo uld represent to the public. If there is no request for further hearing, then this Court w ill treat the issue of dangerousness as having been established. In the event the defenda nt is not release d on bail du e to his dangerousness, this Court may order the defendant committed to the facility that the Health Department designates until this Court is satisfied that the defendant no longer is incompe tent to stand trial, or is no longer a danger to self, others, or the property of others b y reason of h is mental conditio n. M D. C ODE A NN., C RIM . P ROC. § 3-106 (b)(1) (2004). Neither Kelly nor his counsel requested a hearing regarding his dangerousness or any release on bail. Because the record does not include any other order for commitment, we have -4- assumed that Judge Thompson did not make an explicit finding regarding the issue of dangerousness and committed Kelly to Perkins Hospital pursuant to Section 3-106 of the Criminal Procedu re Article, Maryland Cod e (2001). 2 During his confinement at Perkins Hospital, Kelly denied he had a mental disorder, and except for a six-month period from May 2004 until November 2004, did not take the antipsychotic medications prescribed for him. On August 18, 2005, the Department of Health and M ental Hygien e notified K elly that a Clinical R eview P anel wou ld be reviewing his eligibility for force d psychiatric m edication p ursuant to Section 10-708 (b)(2) of the Health-General Article. O n Aug ust 23, 2 005, the Clinical Review Panel convened and approved the forced administratio n of med ication for trea tment of K elly s delusional disorder: 2 Section 3-106 of the Criminal Procedure Article provides: (a) Release. Except in a capital case, if, after a hearing, the court finds that the defendant is incompe tent to stand trial b ut is not dangerous, as a result of a mental d isorder . . . to self or the person or property of others, the court may set bail for the defendant or authorize release of the defendant on recognizance. (b) Commitment. (1) If, after a hearing, the court finds that the defendant is incomp etent to s tand tria l and, be cause o f . . . a mental disorder, is a danger to self or the person or property of another, the court may order the defendant committed to the facility that the Health Department designates until the court is satisfied that the defendant no longer is incompetent to stand trial or no longer is, because of . . . a mental disorder, a danger to self or the person or property of others. Maryland Code (2001), Section 3-106 of the Criminal Procedure Article. -5- Without the medication, you are at substantial risk of continued hospitalization because o f . . . [r]emainin g seriously me ntally ill with no significant relief of the mental illness symptoms that cause you to be a danger to yourse lf or to o thers . . . or . . . [r]emaining seriously mentally ill for a significantly longer period of time with mental illness symptoms that cause you to be a danger to yourself or to others. Kelly appealed the Clinical R eview P anel s decisio n to the Office of Administrative Hearings, and during the hearing before the ALJ, testimony was taken from Dr. Wisn erCarlson, Kelly s treating physician at Perkins Hospital, on behalf of the Department, who addressed Kelly s delusional disorder that formed th e basis for the incompetency evaluation and for the decision to forcibly administer psychotropic drugs: DR. WISNER-CAR LSON: He suffers from delusional disorder, persecutory and grandiose type. [COUNSEL FOR DEPA RTMENT ]: And can you describe exactly what that means? DR. WISNER-CARLSON: Sure. Delusional disorder is a psychotic disorde r. . . . A psychotic disorder is an illness where the person, in lay terms, is out of touc h with reality in som e wa y. And the -- and in delusional disorder, the main aspect of delusional disorder is that the person has a delusion. A delusion is a fixed , false, id iosyncrat ic belief . So th ey have some fixed belief about the world or a bout, you know, something going on with them. For delusional disorder, the delusion is different than other psychotic disorders, such as schizophrenia, in that the delusion is non-bizarre. And what that means is that the thing that the person believes generally could happen. So that when o ne is evaluating a person to make -- in considering the diagnosis of delusional disorder, one has to check a lot of collateral information to determine whether this is a normal belief or whether this is a pathological belief that falls in this realm of delusio n. *** -6- [COUNSEL FOR DE PARTM ENT]: Could you give us some specifics regarding Mr. Kelly s delusion that he has? DR. WISN ER-CA RLSO N: Sure. He s under treatment now, and so some of the delusions have f aded, w e think. But -- and he doesn t see m to hold them to the same degree. But in making the diagnosis, the delusions that he had, he believed that he could represent himself in the cases against h im, which we re serious cases, and according to his attorney, were charges that wouldn t be dropped and that could result in the de ath penalty for him. And he wishe d to represe nt himself a nd put him self forward to the case as a pro se litigant, saying that he felt that there is a conspiracy; that his lawyer was part of the conspira cy; that she had lied to him on a number of occasions; and that she had lied to him in particular about a so-called secret search warrant; that she had gotten it inappropriately from the State s Atto rney; that she had supposedly told him about a plea barg ain that would cap the sentence for all the charge s to six years; and he had in different ways represented a distrust of her and the judge, wh ich appea red delusio nal. He wrote to the Judge. H e wrote to her supervisor . He wro te to the legal oversig ht board -- I c an t recall the name of it -complaining about her. And in different of these letters, made statements that he felt tha t she was in volved in a conspiracy against him; that she was [COUNSEL FOR D EPAR TME NT]: When you say she and her, are you talking about the judge or the lawyer? DR. WISNER-CARLSON: The lawyer, I m so rry. His lawyer. [CO UN SEL FOR DEPAR TM ENT]: O kay. DR. WIS NER-C AR LSO N: M ary Siegfr ied. A nd I m so rry, she s his lawyer, the judge is a man and the prosecutor is a man. [COUNSEL FOR DEPA RTMENT ]: Thank you. DR. WISNE R-CARLS ON: If that helps. [COUN SEL FOR DEPAR TMEN T]: Yes. DR. WISNER CA RLSON: And that she was engaged with the State s Attorney in trying to get him found guilty and getting him prosecuted and fabricating evidence and the like. *** And that is -- there is man y examples o f that, but that s b asically -7- the gist of the persecutory delusions that he had. He also has -or has had grandiose delusions, and those delusions refer to his -- well, he felt that he could represent himself adequately at the trial. . . . And he has felt very co mpetent in his ability to represent himself in this extremely serious matter, even though it has been explained to him that not eve ry lawyer in the public defender s office would be given the opportunity to represent him in such a case, that it s a s pecial legal tea m that doe s it. And he bases that on these legal courses and on his kind of histo ry, which goes back a number of years of what he calls a jailhouse lawyer, in making motions to the court and giving advice to other inmates and this sort of thing. And the degree to which he has previousl y held those beliefs, although this part seems a little better, is -- was felt by a number of psychiatrists and the court to ra ise to the degree of being a delusion. *** So he -- and so he doesn t have the cognitive abilities -- or he doesn t have the schooling. He also doesn t have the cognitive abilities. He was borderline intelligence on testing, but also on special neuro-psychologic testing he has a cognitive disorder, special problems in reading, and so he -- so it s not felt that he has a cognitive ability to pursue -- to be the CEO of a company and to be a successful businessman in that way. And plus he doesn t h ave t he vocat iona l history. But he continued -- he has continued to uphold those ideas to a delusional degree. And interestingly enough, with treatment, he s rele ased a lo t of thos e ideas. [COUNSEL FOR DEPA RTME NT]: Does M r. Kelly have any ideas or delusions regarding evidence against him in the criminal trial? DR. WISNER-CARLSON: He has in the past felt that it was both fabricated and inadequate. Per Dr. Carr-Malone s pre-trial report, which reviews the State s ev idence, there is suppose dly DNA evidence. He feels that is false or inadequ ate. There is other evidence that he -- some eyewitness for one of the crimes, for the rape. Th ere is other evidence, physical evidenc e, that -to a layperson that is not a lawyer seems fairly substantial, and it does to me, to the other psychiatrists. And he has felt that all -8- of that e videnc e wou ld be thr own o ut of co urt. Indeed, he has rece ntly met with his attorn ey, recently being in the beginning of June, and h e has indica ted to her at tha t time that it would [n ot be bene ficial] to represent himself in the case, and he shared with me in a letter that she has written to him -Mary Siegfried has written to him, and in that lette r she strong ly urges him to have legal counsel. She said that the case won t be dropped and that the charge is ve ry serious and th at it could resu lt in th e dea th pe nalty. [COUNSEL FOR DEPARTM ENT]: And has Mr. Kelly made any statements regarding whether he believed that he would be successful in representing himself in this criminal case? DR. WISN ER-CA RLSO N: Previously he s felt very comforta ble in representing himself, and thought tha t he could represent himself. He felt especially that he could represent himself because the charges wou ld be drop ped. Mo re recent ly, as of yesterday when I had spoken to him about it, he seems more willing to accept that the charges won t be dropped and that the case co uld well go forward and that he would rather have an attorney represent him, but that if the cou rt won t appoint a different attorney, then he fe els comfo rtable representing himself. *** [Ke lly] is argumentative, litigious, like I said, peevish; will often file numerous complaints, lawsuits, grievances, this sort of thing, and will do so when th ere doesn t seem to be merit; when -- will continually re-file the complaint even tho ugh wh en its reviewed by the court or w hatever, the re viewing a gency, it will be throw n out or felt, ag ain, to not hav e merit. *** [H]e has repeatedly made complaints about his public defender, about the State s Attorney. He s -- about the judge, to the different review agencies, to their supervisors. He was -- when he first came in the hospital and u p to maybe three or four months ago, was repeatedly filing lawsuits to Howard County Circuit Court about various complaints he had about staff or the hospital, and all of these w ere discharg ed, not hav ing merit. -9- In response to a question concerning whether Kelly was a danger to him self or to others, Dr. Wisn er-Carlson opined that Kelly was a danger to others because he s been adjudicated as a dangerous person by a judge. On cross-examination, Dr. Wisner-Carlson could not point to a ny specific instances of dangero us behavior within the context of Kelly s confinem ent, testifying that Kelly has not threatened or assaulted anyone while he s been in [Perkins Hospital]. He s not been in seclusion or restraints. He s not been on any special observation. And he s not had any special intervention in regards to assaultiveness or the like. Kelly testified before the ALJ, iterating that he did not have a mental illness, did not suffer from delusions, was not dangerous, had a perfect patient record at Perkins Hospital, and was competent to stand trial. He emphasized that he had taken medication, which was not beneficial and caused detrimental side effects: [COUNSEL FOR KELLY ]: Do you believe that you re compete nt, that you re able to stand trial at this time for the charges against you? KELL Y: One hundred percent, I m compete nt to stand trial. *** [COUNSEL FOR KELLY]: Do you believe that you have a mental illness? KELLY: I don t have any menta l illness. I don t suffer from delusions. *** [COUNSEL FOR K ELLY ]: And are you in agreem ent with taking the medication at this particular time that has been -10- prescribed by Dr. Wisner-Carlson? KEL LY: N o, I don t like the medic ine. . . . [COUNSEL FOR KELLY]: Have you ever experienced any side effects from the medication? KELLY: Yes. And I told Dr. Carlson about it. One time I had the shakes, and I went to the nurse s station and told them at midnight that I had the shakes. I couldn t stop shaking and I had difficulty breathing. And she called the doctor -- called some other doctor -- and told me to take . . . . That s when the shakes went away. But I was sweating like I don t know what, like runnin g wate r, and th e room was co ld, also. *** [COUNSEL FOR KELLY ]: Do you believe that the med ications h ave h elpe d you in an y way? KELLY : Not real ly. [COUNSEL FOR KELLY ]: Do you believe that the med ications h ave h armed you in a ny wa y? KELLY : Yes. [COUNSEL FOR K ELLY ]: And how do you believe that they have harmed you? KELLY: Because the side effects can do damage to your liver and your sugar, your blood, and all sorts of -- it just messes everything up. The ALJ concluded that Kelly suffered from a delusional disorder and that the medication s were pre scribed fo r the purpo se of treatm ent: The evidence in this case is tha t the alleged d elusions circle around Mr. Kelly s belief that his attorney was working against him, that the judge w as workin g against him , that his attor ney, Ms. Siegried, had violated a number of provisions that she should not have violated, such as privileged communication, allegedly some reference to a secret warrant, that Ms. Siegfried had passed on documents or received documents from the prosecutor, and had passed on docume nts to Dr. WisnerCarlson. *** -11- I find that Dr. Wisner-Carlson s diagnosis of delusional disorder is, in fact, a reason able, su pporta ble diag nosis. Next, I hav e to determine whether the me dication prescribed by Dr. W isnerCarlson has been proscribed for the purpose of treating delusional disorder. D r. Wisner-C arlson has c redibly testified that the medical authorities support treatment of delusional disorder through medication. He has also testified that other psychiatrists in this hospital believe that it is -- delusional disorder is treatable through these medications. Therefore, I find that his te stimony, that the medication was prescribed for the purpose of treating a mental disorder, to be supported by the evidence. The evidence is also undisputed that Mr. Kelly has refused the psychiatric medications that are listed in the Clin ical Re view P anel s d ecision . . . . I find that the administration of medication represents exercise of professional judgmen t. Mr. Kelly was provided with a discussion of the potential side effects. He has been monitored for the exhibition of those side effects. Although M r. Kelly testified that he did have one night when he was feeling unwell, I do have testimony indicating that those feelings or those conditions were related to the medication. Moreo ver, Mr. K elly was able to take two T ylenol, and those health conditions vanished. Clearly then, I do not believe that the side ef fects are so severe as to make it an unreasonable exercise of professional judgment to administer these medications to M r. Kelly. Moreover, Dr. Wisner-Carlson has testified that some of M r. Kelly s symptoms appear to be dissolving after treatment of this medication, further supporting my conclusion that the administration of medication represents a reasonable exercise of professional judgmen t. With respect to the last requirement of Section 10-708 (g) whether without the medication, Kelly was at substantial risk of continued hospitalization because of remaining seriously mentally ill with no significant re lief of the m ental illness symp toms that ca use him to be a danger to the individual or others the ALJ found that the circuit court judge had -12- determined Kelly to be a danger to himself or others and that determination was sufficient to permit forcible medication: The issue that has been raised is whether the hospital has established all the necess ary criteria, specifically dangerousness. The hosp ital h as pr esen ted te stimony th at M r. Ke lly was adjudicated to be a dangerous person as a result of a 38-page decision by a C ircuit Court Jud ge. That de cision is not recent, thus the question become s whethe r the hospital is f ound to establish whether Mr. Kelly is dangerous as of this time. The statute regarding involuntary commitment requires evidence of current dangerous. The statute regarding refusal of forced medication has been unde r court review. The Court of Special Appea ls several years ago issued a determination -- issued a decision saying that dangerousness had to be current dangerousness for 10-708, as well as to be a voluntary admission as part of the statute. That decision by the Court of Special A ppeals was vacated. Therefore, I cannot rely upon it as any leg al authority to determine that in Ma ryland this statute re quires evid ence of current dangerousness. *** There is no Maryland case law interpreting Section 10-708 w ith regard to the term of current dangero usness. A nd I find tha t in the absence of such case law, that it is reasonable, it is a reasonab le interpretation for me to rely on the previous dangerousness determination by the Circuit Court, which was clearly a lengthy, detailed decision made after a lot of evidence was pres ented to the Court. Based on my findings, I conclude as a matter of law that the hospital has shown by a preponderance of the evidence that M r. Anthony Kelly should be m edicated w ith the psychiatric medication listed above for a period not to exceed 90 days. Kelly sought jud icial review o f the AL J s findings of fact an d conclus ions of law in the Circuit Court for Ba ltimore City, and also moved for a stay of forced medication pending -13- a hearing, which was denied. At the hearing on the merits, Kelly s counsel argued that the record before the AL J was insufficient to sup port a finding of current dangerousness, which she contended was a predicate for forced medication under Section 10-708 (g). The Department of Health and M ental Hygien e, converse ly, relied upon the opinion o f the Circu it Court for Montgomery County, contending that the finding that Kelly was dangerous at the time he was committed was sufficient to forcibly medicate. After hearing arguments from counsel and review ing the transc ript of the administrative hearing, Judge Albert J. Matriccian i, Jr., of the Circuit Court for Baltimore City, reversed the decision of the ALJ based upon the Court of Special Appeals s decision in Martin v. Department of Health and Mental Hygiene, 114 Md. App. 520, 691 A .2d 252 , vacated as moot, 348 Md. 243, 703 A.2d 166 (1997), which held that for purposes of forcible administration of medication, Section 10-708 (g) of the Health-General Article requires evidence that an involuntarily committed individual is a danger to himself or others in the context of his confinement within the f acility in which he has been committed, rather than to society upon release.3 3 The Order of the Circuit Court for Baltimore City provided: This matter having come before the Court as an on the record appeal from the decision of the Administrative Law Judge dated September 1, 2005, the Court hav ing heard the arguments of counsel and reviewed the transcript of the proceeding before the Administrative Law Judge, it is this 9th day of November, 2005, by the Circuit Court f or Baltim ore City, P art 20, ORDERED that the decision of the A dministrative Law Judge dated September 1, 2005 is REVERSED for the reasons stated below. (continued...) -14- (...continued) This appeal turns on the interpretation of M d. Cod e Ann ., Health Gene ral Art., § 10-70 8 (200 5 Rep l. Vol. & 2005 S uppl.) which sets forth the bases under Maryland law by which an individual involuntarily committed to a state psychiatric f acility may be involuntarily medicated. In the present case the ALJ approved the determination of a clinical review panel that Anthony Kelly, a patient at the Patuxent Institution, could be forcibly medicated, while being held in a status of incompetent to stand trial on s erious crim inal charge s. Kelly s appe llate counsel argued that the record before the ALJ was insufficient to support a finding of current dangerousness, which she contended is a necessary predicate for approval of forced mediation under Maryland s statutory scheme. The Department of Health & Mental Hygiene relied upon the record evidence, which contained a finding by a Montgomery County Circuit Court Judge on the issue of dangero usness, at the time that K elly was committed as incompe tent to stand trial, p rior to his institutionalizatio n at Patuxe nt. This Court is persuaded on the issue presented by the analysis of the panel of the C ourt of S peci al Appeals of Maryland in the case of Martin v. Dept. of Health & Mental Hygiene, 114 Md. App. 520 (1997), interpreting § 10-708 to require evidence that an involuntarily co mmitted ind ividual is a da nger to him self or others in the facility to w hich he ha s been inv oluntarily admitted, rather th an to so ciety gene rally upon his relea se. This court is persuaded that that is a correct interpretation of Maryland s involuntary medication statute. Although the judgment of the Court of Special Appeals in Martin was vacated and ultimately dismissed on the ground of mootness, following a per curiam order of the Court of Appeals, 348 Md. 243 (1997), its reasoning may constitute persuasive authority to this Court in the same sense as other dicta may constitute persuasive authority on any le gal issue . West v. State , 369 Md. 150 , 157 (2002). In Martin, 114 Md. App. at 520, 691 A.2d at 252, the Court of Special Appea ls held that Section 10-708 (g)(3)(i) permits forcible medication only if the individual, without (continued...) -15- The Departm ent of He alth and Mental Hygiene appealed Judge Matricciani s Order to the Court of the Special Appeals, and subsequently this Court issued, on its own initiative, a writ of certiorari prior to any proceedings in the in termed iate app ellate co urt. Dep t of Health and M ental Hyg iene v. Kelly , 393 Md. 477 , 903 A.2d 416 (2006). The Department s brief presents the following issue: Did the circuit court err in construing Section 10-708 of the Health-General Article to require the Department to show that an involuntary pa tient is a dang er to himself or to others in the facility before the patient may be forcibly medicated when, without medication, the patient will remain hospitalized inde finit ely? We hold that Section 10-708 (g) requires the State to prove that an individual involuntarily committed to a state institution is, because of his mental illness, dangerous to himself or (...continued) medication, is a danger to himself or others in the facility in which he is confined. After considering the fact that Section 10-708 was enacted in the present tense, and not the future tense, which would have required the State to prove the individual would be a danger to the general community if released, the intermediate appellate court considered the dangerousness requirement in conjunction with the o ther statutory provisions involving involuntary admitted individuals. Id. at 527-28, 691 A.2d at 25 6. The court noted that because to admit an individual involuntarily under Section 10-632, the civil com mitment statute, there must be a showing of dangerousness in the commun ity, and that to requ ire the same showing to subseque ntly forcibly medicate would render the dangerousness requireme nt in the forc ible medication statute redundant, and c ould not have bee n the legislature s intent. Id. at 528, 691 A.2d at 256. Judge Wenner, writing for the court, further stated that the Legislature s intent must have been to allow forcible administration of medication only when all else fails, given that forced medication constitutes such a substantial interference with a person s liber ty. Id. Judge Wenner also noted that the rationale behind Section 1 0-708 (g)(3) s enactment must hav e been to p rovide individuals with additional procedural due process grounds, and that to adopt an interpretation allowing forcible medication when the individual would be a dang er if released , would nullify the statute s purpo se. Id. at 529, 691 A.2d at 256. -16- others in the conte xt of his con finemen t within the in stitution befo re it may forcibly administer medication. II. Discussion The Department contends that to forcibly medicate Kelly under Se ction 10-708 (g), the State is on ly required to prove that he is at substantial risk of continued hospitalization because he remain s seriously men tally ill and that he po ses a dang er to himself or others in the community if released, which they argue was proven during the commitment hearing in 2004. The Dep artment also contends that to adop t Kelly s reason ing that an in voluntarily committed individual must be dangerous in the context of confinement in order to involuntary medicate would render the Clinical Review Panel provisions of Section 10-708 (g) meaningless surplusage in light of the inte rplay of Sectio ns 10-701 (c)(3)(i) 4 and 10-708 (b)(1)5 of the He alth-Gene ral Article, w hich perm its forcible administration of medication in an emergency. According to the Department, Kelly s interpretation w ould evisce rate Section 10-708 because an individual who is at substantial risk of continued hospitalization could refuse medication for treatment, absent a finding of current dangerousness, even though his involuntary commitment was dependent upon a prior finding of dangerousness. Kelly, conversely, argues that the legislative history supports his interpre tation of 4 Section 10-701 (c)(3)(i) provides that a patient is entitled to be free from restraints or locked door seclusions unless in an emergency where the patient presents a dange r to the lif e or saf ety of the i ndivid ual or o f others . 5 Section 10-708 (b)(1) states that medication may be fo rcibly administered [i]n an emergency, on the order of a physician where the individual presents a danger to the life or safe ty of the in dividu al or oth ers. -17- Section 10-708 (g) that to forcibly medicate an involuntarily committed individual, the State is required to p rove that the individual is a substantial risk of continu ed hospitali zation because he exhibits symptoms of a mental illness that cause him to be a danger to himself or others in the conte xt of his con finemen t within the sta te institution. K elly also maintains that a dangerousness finding made during a prior commitment proceeding is not equivalent to the dangerousness finding needed to thereafter forcibly medicate under Se ction 10-708 (g). Moreover, Kelly argues that the Department s interpretation would implicate various constitutional rights, including the right to freedom of speech.6 Ordinarily, a physician cannot properly undertake any therapy, in nonemergency situations, without an individ ual s inf ormed consen t. Sard v. Hardy, 281 Md. 432, 438-39, 379 A.2d 1014, 10 19 (1977). The ind ividual s right to refuse medical treatment includes the administration of medication. Williams v. Wilzack, 319 Md. 485, 494-95, 573 A.2d 809, 813 (1990 ). These rights em body an individ ual s libe rty interest in bodily inte grity. Id. Section 10-708 (b)(2) of the H ealth-General Article provides an exception to the general rule, permitting the State to overrule an individual s right to refuse medical treatment by permitting the forcible administration of medication in a nonemergency, when the individual is hospitalized involuntarily or committed for treatment by order of a court and the medication is approved by a panel under the provisions of this section. The methodology 6 Because we decid e this case on a non-constitutional ground, we will not decide the constitutional issues posed. See Piscatelli v. Bd. of Liquor License Comm rs, 378 Md. 623, 629-30, 837 A.2d 931, 935 n.2 (2003) (stating that, in Maryland, it is a well established principle that a court will not decide a constitutional issue when a case can properly be disposed of on a n on-constitutional ground ). -18- for the Clinical R eview Panel to determine the efficacy of forcible administration of medication is provided by Section 10-708 (g), which requires that it determine the medication is pres cribed by a psychiatrist to treat the individual s mental disorder, that the medication represents a reasonab le exercise of professional judgment, and that without the medication, the individu al is a substan tial risk of con tinued hos pitalization be cause the p atient, (i) Remain [s] seriously me ntally ill with no significant relief of the mental illness symptoms that cause the individual to be a danger to the individual or to others; (ii) Rem ain[ s] seriously mentally ill for a significantly longer period of time with mental illness symptoms that cause the individual to be a danger to the individual or to others; or (iii) Relaps[e s] into a con dition in wh ich the indiv idual is in danger of serious physical harm resulting from the individual s inability to provide for the individual s essential human needs of heal th or safe ty. Three different ca tegories of in voluntarily committed individuals may be forcibly medicated under Section 10-708 (g ): individuals involuntarily co mmitted to a state institution civ illy under Section 10-632 (e) of the Health-General Article; individuals involuntarily committed after having been found not criminally responsible under Section 3-112 of the Criminal Procedure Article, Maryland Code (2001); and individuals involuntarily committed after being found incompetent to stand trial under Section 3-10 6 (b) of the Criminal P rocedure Article, Maryland Code (2001), such as the Respondent herein. The critical issue presented to us is whether in order to forcibly medicate under Section 10-708 (g ), the State is req uired to sho w that, because of a mental illness, an individual involuntarily committed to a state institution is dangero us to himse lf or others in -19- the context of his confinem ent within th e state institution, or only that the individual was, or wou ld be if rel ease d, da ngerous to himself or othe rs in t he gener al co mmunity. The general principles of statutory interp retation are w ell established , as our goa l is to identify and effectuate the legislative intent underlying the statute. Oaklan d v. Mou ntain Lake Park, 392 Md. 301, 316, 896 A.2d 1036, 10 45 (2006 ); In re Anthony R., 362 Md. 51, 57, 763 A.2d 136, 139 (2000). To ascertain the Legislature s intent, we first examine the plain language of the statute; if the language is unambiguous when construed according to its ordinary meaning, then we will give effect to the statute as it is written. Oakland, 392 Md. at 316, 896 A.2d at 10 45; Pak v. Hoang, 378 Md. 315, 323, 835 A.2d 1185, 1189 (2003), quoting Moore v. Miley, 372 Md. 663, 677, 814 A .2d 557, 566 (200 3). If a statute s language has more than one reasonable interpretation, however, the language is ambiguous, and we w ill resolve any ambiguity in light of the legislative history, caselaw, and statutory purpose. Oakland, 392 Md. at 316, 896 A.2 d at 1045; Comptroller v. Phillips, 384 Md. 583, 591, 865 A.2d 59 0, 594 (2005). We will examine the ordinary meaning of the language, as well as how that lang uage re lates to th e overa ll mean ing, settin g, and p urpose of the a ct, resolved to avoid any unreasonable, illogical, or inconsistent interpretation of the statute. Oakland, 392 Md. at 316, 896 A.2d at 1045; Gwin v. MVA, 385 Md. 440, 462, 869 A.2d 822, 834-35 (2005). Finally, we presume that the Legislature has acted with full knowledge of prior legislation, and construe the statute as a whole so that no word, clause, sentence, or phrase is rendered surplusage, superfluous, meaningless, or nug atory. Oakland, 392 Md. at 316, 896 A.2 d at 1045; Mazor v. State Dep t of Correction, 279 Md. 355, 360-61, 369 A.2d -20- 82, 86-87 (1977 ). The General A ssembly did not define the temporal context for the determination of dangerousness in Section 10-708 (g ), i.e., whether it is past dangerousness, dangerousness in the context of confinement in a state institution, or future dangerousness that is the salient trigger for forcible medication to treat a mental illness. Because Section 10-708 (g) is subject to multiple interp retations, it is, therefore, ambiguous, and we look to legislative history to illumina te the L egislatu re s inten t. Oakland, 392 Md. at 316, 896 A.2d at 1045. House Bill 1372,7 the first legislative attempt to address the issue of forcible 7 House Bill 1372 provided: SECTION 1. BE IT ENACTED BY THE GENERAL ASSEMBLY OF MARYLAND, That Section(s) 10-708 through 10-712, respectively, of Article Health General of the Annotated Code of Maryland be renumbered to Section(s) 10-7 09 th roug h 10-713 , resp ectiv ely. SECTION 2. AND BE IT ENACTED, That the Laws of Maryland read as follows: Article Health General 10-708. (A) AN INDIVIDUAL IN A FACILITY MAY ELECT TO REFUSE MEDICATION USED FOR THE TREATMENT OF A MENTAL DISORDER EXCEPT: (1) WHEN THE MEDICATION IS PROVIDED ON THE ORDER OF A PHYSICIAN IN AN EMERGENCY WHERE THE INDIVIDUAL PRESENTS A D ANGER TO TH E LIFE OR SAFETY OF THE INDIVIDUAL OR OTHERS; OR (2) IN NONEMERGENCY SITUATIONS, WHERE THE INDIVIDUAL IS HOSPITALIZED INVOLUNTARILY OR BY ORDER OF A COURT AND THE MEDICATION IS (continued...) -21- 7 (...continued) APPROVED BY A CLINICAL REVIEW PANEL. (B) (1) THE CLINICAL REVIEW PANEL CONSISTS OF THE FOLLOWING MEMBERS APPOINTED BY THE MEDICAL DIRECTOR: (I) THE MEDICAL DIRECTOR IF THE MEDICAL DIRECTOR IS A PHYSICIAN OR A PHYSICIAN DESIGNATED BY THE MEDICAL DIRECTOR; (II) A PSYCHIATRIST; AND (III) A NONPHYSICIAN MENTAL HEALTH CARE PROVIDER. (2) ONLY 1 MEMBER OF THE CLINICAL REVIEW PANEL MAY BE DIRECTLY RESPONSIBLE FOR IMPLE MENTING THE INDIVIDUALIZED TREATMENT PLAN FOR THE INDIVIDUAL UNDER REVIEW. (C)(1) IN DETERMINING WHETHER TO APPROVE THE MEDICATION, THE CLINICAL REVIEW PANEL SHALL: (I) REVIEW THE INDIVIDUAL S CLINICAL RECORD; (II) CONSULT WITH THE FACILITY PERSONNEL WHO ARE RESPONSIBLE FOR IMPLEMENTING THE INDIVIDUAL S TREATMENT PLAN; (III) CONSULT WITH THE INDIVIDUAL REGARDING THE REASONS FOR REFUSING THE MEDICATION; (IV) REVIEW THE INDIVIDUAL S CAPACITY TO MAKE DECISIONS CONCERNING TREATMENT; AND (V) REVIEW THE POTENTIAL CONSEQUENCES OF REQUIRING THE INDIVIDUAL TO AC CEPT THE M E D I C A T IO N A N D O F W I T H H O L D I N G T H E MEDICATION FROM THE INDIVIDUAL. (2) THE CLINICAL REVIEW PANEL MAY NOT APPROVE THE MEDICATION WHERE THERE ARE ALTERNATIVE TREATMENTS THAT ARE ACCEPTABLE TO BOTH THE INDIVIDUAL AND FACILITY PERSONNEL WHO ARE DIRECTLY RESPONSIBLE FOR IMPLEMENTING THE INDIVIDUAL S TREATMENT PLAN. SECTION 3. AND BE IT FUR THER ENA CTED , That this Act shall take effect July 1, 1984. (continued...) -22- medication, entitled Mentally Ill Individuals Refusal of Medication, initially provided that a mentally ill individual in a Mental Hygiene facility may refuse medication for the treatment of a mental disorder except in emergency situations when the physician orders the medication because of danger to the life or safety to the individual or others, or if the individual is hospitalized involuntarily or by order of a court and the medication is approved by a clinica l review panel. Department of Fiscal Services, Fiscal Note to House Bill 1372 (1984). It also established certain criteria for the clinical review panel to follow for implementing a treatment plan for certain individuals under review and for the approval and use of me dication for cert ain patie nts. Id. The Bill w as de scrib ed by Delegate Paula C. Hollinger as reflecting the balance between a patient s right to determine what is ingested into his or he r body, . . . and a prof essional s du ty to provide the best availab le treatme nt, and by Eugene Kowalczuk, Chief Attorney for The Legal Aid Bureau, as protect[ing] the interest of the individual while addressing the concerns of the facility personnel. Written Testimony of Delegate Paula C. Hollinger on House Bill 1372 Before the House Environmental Matters Committee, on March 13, 1984; Letter from Eugene Kowalczuk, Chief Attorney, The Legal Aid Bureau, to Honorable Larry Young, Chairman, House Environmental Matters Committee (March 7, 1984). House Bill 1372, as modified, was enacted, took effe ct on July 1, 1984 , and was codified as Section 10-7088 of the He alth 7 (...continued) House Bill 137 2 (1984). 8 Prior to 1984, Section 10-708 of the Health-General Article was entitled (continued...) -23- General A rticle, providing in pertinent p art: (a) Election to refuse medication; exceptions. An individual in a facility may elect to re fuse med ication used for the treatment of a mental d isorder exc ept: *** (2) In nonemergency situations, where th e individua l is hospitalized involuntarily or by order of a court and the medication is approve d by a clinical rev iew pane l. *** (c) Approval of medication by panel. (1) In determining whether to approve the medication, the clinical review panel shall: (i) Review the individu al s clinical reco rd; (ii) Consult with facility personnel who are responsible for impleme nting the ind ividual s treatm ent plan; (iii) Consult with the individual regarding the reasons for refusing th e medicatio n; (iv) Review the individual s capacity to make decisions concerning treatment; and (v) Review the potential consequences of requiring the individual to accept the medication and of withholding the medic ation fr om the individ ual. (2) The clinical review panel may not approve the medication where there are alternative treatments that are acceptable to both the individual and facility personnel w ho are direc tly responsible for implementing the individual s treatment plan. 1984 Md. Laws, Chap. 480, codified as Maryland Code (1982, 1989 Supp.), Section 10-708 (...continued) Director s access, and did not involve forced medication. The section was moved to Section 10-712 of the Health-General Article pursuant to House Bill 1372. 1984 Md. Laws, Chap. 480. -24- (c) of the Health-General Article.9 Section 10-708 re mained u nchange d until 1991, a fter House Bill 588 had been introduced, when th e Genera l Assemb ly extensively mo dified it as a res ult of our opinio n in Williams, 319 Md. at 485, 573 A.2d at 809, to provide additional procedural and substantive due process 10 safeguards for individuals receiving forcible medication: In 1990, the Court of Appeals, in Williams v. Wilzack, 319 Md. 485, 573 A.2d 809 (1990), found that the clinical review panel process failed to provide adequate procedural and substantive due process protection for the involuntary administration of 9 Before the enactment of House Bill 1372, in November of 1982, the Mental Hygiene Admin istration, DH MH, issu ed Interim G uidelines fo r the use of Psychotropic Medication in State Mental Health Facilities to provide physicians in State facilities with legally acceptable standards to follow when a patient objects to treatment. Letter from Fran Trac ey, Director, Office of L egislative, Volunteer and Public Relations, to Honora ble Denn is F. Rasmussen, Chairman, Senate Finance Committee (April 6, 1984). House Bill 1372 provided the same general protection for the patient afforded under the Interim Guidelines. Id. 10 Procedural due process safeguards have been described as requirin g both notice and an opportunity to be heard on the issues to be decided in a case, Blue Cross of Md., Inc. v. Franklin Square Hosp., 277 Md. 93, 101, 352 A.2d 798, 804 (1976), w hile substantive due process rights require legislation to be fair, and not arbitrary, oppressive or unreas onable . Hargrove v. Bd. of Trustees of Md. Retirement System, 310 Md. 406, 427, 529 A.2d 1372, 1382 (1987). The Supreme Court, in Washington v. Harper, 494 U.S. 210, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990), discussed substantive and procedural due process in the framework of a forcible medication case: Restated in the terms of this case, the substantive issue is what factual circumstances must exist before the State may administer antipsychotic drugs to the prisoner against his will; the procedural issue is whether the State s nonjudicial mechanisms used to determ ine the f acts in a p articular case are suffici ent. Id. at 220, 110 S.Ct. at 1036, 108 L.Ed.2d at 197. -25- drugs to a mental patient in a psychiatric institution operated by the Department of Health and Mental Hygiene. Without this process, health officials must obtain a court order of guardianship before medicating a dangerous individual who refuses medic ation. Guardianship, how ever, involves a finding of incompetence, which may not be present in all cases involv ing refu sal of m edicatio n. The courts have found that involuntarily committed patients are entitled to some, if limited, due p rocess. Th e bill provide s both procedural and substantive protection in accordance with case law. Senate Judicial Proceedings Committee, Bill Analysis of House Bill 588 (199 1). In itially, when House B ill 588 was introduced , it provided in relevant pa rt, that the State co uld forcibly medicate an individual only if, WITHOUT THE MEDICATION, THE INDIVIDUAL IS AT S U B S T A N T IA L RISK OF C O NTINUED HOSPITALIZATION BECAU SE OF: A. REMAINING SERIOUSLY MENTALLY ILL WITH NO SIGNIFICANT RELIEF OF THE MEN TAL ILLNESS; B. REMAINING SERIOUSLY MENTALLY ILL FOR A SIGNIFICANTLY LONGER PERIOD OF TIME; OR C. RELAPSING INTO A CONDITION IN WHICH THE INDIVIDUAL IS IN DANGER OF SERIOUS PHYSICAL HARM RESULTING FROM THE INDIVIDUAL S INABILITY TO PROVIDE FOR THE INDIVIDUAL S ESSENTIAL HUMAN NEED OF HEALTH OR SAFETY. House Bill 588 (1991) (Introduced and read: Febru ary 1, 1991). S ubseque nt to its introduction, amendments were proposed by the Maryland Psychiatric Society, and On Our Own of Maryland, Inc., a statewide organization representing people who had been in psychiatric hospitals, which was critical of the language of the initial bill as much too broad, further complaining that some patients by their diagno sis of a chro nic mental illness -26- alone, e.g., chronic depressive illness; will meet this standard. Written Testimony In Support of House Bill 588 with Amendments, On Our Own of Maryland.11 The Maryland Psychiatric Society proposed the amendment which provided the basis for the language of Section 10-708 (g ), permitting the forcible ad ministration o f medica tion only if, without the medication, the individual is at substantial risk of continued hospitalization because of: A. REMAINING SERIOUSLY MENTALLY ILL WITH NO SIGNIFICANT RELIE F OF THE MENTA L ILLNESS SYMPTOMS WHICH CAUSE THE INDIVIDUAL TO BE A DANGER TO SELF OR OTHERS; [OR] B. REMAINING SERIOUSLY MENTALLY ILL FOR A SIGNIFICANTLY LONGER PERIOD OF TIME WITH MENTAL ILLNESS SYMPTOMS WHICH CAUSE THE 11 On Our Own of Maryland s proposed amendm ent to Hou se Bill 588 provided that forced m edication w ould be av ailable if, without th e medicatio n, the individ ual were to be at substantial risk of continued hospitalization because of, A. REMAINING SERIOUSLY MENTALLY ILL WITH NO SIGNIFICANT RELIEF OF THE MENTAL ILLNESS OR REMAINING SERIOUSLY MENTALLY ILL FOR A SIGNIFICANT LONGER PERIOD OF TIME; AND B. THE IN DIVIDU AL IS CO MMU NICAT ING IRRATIONALLY OR IS IN DANGER OF SERIOUS PHYSICAL HARM RESULTING FROM TH E INDIVID UAL S INABILITY TO PROVIDE FOR THE INDIVID UAL S ESSENTIAL HUMAN NEEDS OF HEALTH OR SAFETY; OR C. RELAPSING INTO A CONDITION IN WHICH THE INDIVIDUAL IN DANGER OF SERIOUS PHYSICAL HARM RESULTING FROM THE INDIVIDUAL S INABILITY TO PRO VIDE F OR TH E INDIV IDUAL S ESSENTIAL HUMAN NEED OF HEALTH OR SAFETY. Written Testimony In Support of House Bill 588 with Amendments, On Our Own of Maryland. -27- INDIVIDUAL TO BE A DA NGER TO SELF OR O THERS. Letter from Maryland Psychiatric Society, to John S. Arnick, Chairman, House Judiciary Committee (March 8, 1991). The Senate Judicial Proceedings Committee s Bill Analysis of House Bill 588 de scribed the b ill s extensive m odifications to provide p rocedural and substantive due process protections for involuntarily committed individuals: The procedural safeguards include: advance notice to the individual that a clinical review panel will be convened, including the right to attend, present evidence , ask questions, and be assisted by a lay advisor; appeal to the Office of Administrative Hearings if the panel approves the administratio n of medication. The substantive provisions require the panel to make specific findings that without the medication, the person will require a longer period of h ospitalization and will continue to be a danger to self and others. Senate Judicial Proceedings Committee, Bill Analysis of House Bill 588 (1991) (emphas is added). The Clinical Review Panel provisions enacted in 1991 were set to terminate June 30, 1993, but were extended in 1993, pursuant to House Bill 170, to July 1, 1995. 1993 Md. Laws, Chap. 135. The Floor Report of the Senate Judicial Proceedings Committee referred to the holding in Williams v. Wilzack, 319 Md. at 485, 573 A.2d at 809, and repeated that the basis for the extensive change in 1991 was: Current law regarding forced medication was enacted in 1991 after Williams v. Wilzack, 319 M d. 485 (1990), pointed out inadequa te due process protections in the way clinical review panel carried out the f orced adm inistration of a ntipsychotic medication to involuntarily committed men tal patients. In response to Williams, procedural due process protections in the -28- clinical review process now include: (1) advance notice to the individual that a clinical review panel will be convened and that the individual will be allowed to attend, present evidence, ask questions, and receive the assistance of a lay advisor; and (2) the right of an appeal to the Office of Administrative Hearings, if the panel approves the administration of medication. Substantive due process protections now require the panel to make specific findings that without medication, the individual will require a longer period of hospitalization and will continue to be a danger to himself and others. Senate Judicial Proceedings Committee, Floor Report on House Bill 170 (1993). The Legislature also, again, reje cted any requ irement that th e State also must prove that the individual is incompe tent to mak e medical d ecisions be fore forcib ly administering medication, stating that obtaining a court order of guardianship after a finding of incompetence was an option to avoid the Clinical Review Panel process, but could not be required because incompetence is not present in every case that involves a refusal of medic ation. 12 Id. In Williams v. Wilzack, the noted linchpin of the 1991 revision, we held that Section 10-708, as in effec t in 1988, w as facially unco nstitutional because it did not afford the requisite procedural due process protections for the forcible administration of medication to an involuntarily committed individual, and explored Supreme Court precedent, including 12 The General Assembly extended the termination date for Section 10-708 (g) in 1995, 1999, 2001, and 2005, when, finally, the sunset provision was re pealed . See 1995 Md. Laws , Chap . 266; 19 99 M d. Law s, Chap . 203; 20 01 M d. Law s, Chap . 15; 2005 Md. Laws, Chap. 13. -29- Harper, 494 U .S. at 210 , 110 S .Ct. at 10 28, 108 L.Ed.2 d at 178 , Mills v. Rogers,13 457 U.S. 291, 102 S.Ct. 2442, 73 L.Ed.2d 16 (1982), and Youngberg v. Romeo,14 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982), and concluded that an individual must be provid ed with advance notice of a ny proceedin gs before a clinical review panel, the righ t to be presen t, to present evidence, to cross-examine witnesses at the hearing, as well as to have the assistance 13 In Mills v. Rogers, 457 U.S. 291, 102 S.Ct. 2442, 73 L.Ed.2d 16 (1982), the Supreme Court recognized that substantive due process rights could be subject to broader protection under state law than under federal law: As a practical matter both the substantive and procedural issues are intertwined with questions of state law . In theory a court might be able to define the scope of a patient s fed erally protected liberty interest witho ut referenc e to state law. Having done so, it then might proceed to adjudicate the procedural protection required by the Due Process Clause for the federal interest alone. For purposes of determining actual rights and obligations, however, questions of state law cannot be avoided. Within our federal system the substantive rights provided by the Federal Constitution define only a minimum. State law may recognize liberty interests more extensive than those independ ently protected by the Federal Constitution. If so, the broader state protections would define the actual substantive rights po ssessed by a perso n living within that Stat e. Id. at 299- 300, 10 2 S.Ct. a t 2448- 49, 73 L .Ed.2d at 22-2 3 (citatio ns omi tted). 14 In Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982), the Supreme Court held that an individual involuntarily committed to a state institution possesses a liberty interest protecte d by the Du e Process C lause of the Fourteen th Amendment to experien ce safe co nditions of confinem ent, to be free from un reasonab le bodily restraints, and to pursue m inimally adequate or reasona ble training to ensure saf ety and freedo m from undue restraint. Id. at 320-22, 102 S.Ct. at 2460-61, 73 L.Ed.2d at 40-41. The Court stated, howev er, that these rights are not absolute, but may be limited to the extent professional judgment deems this nec essary to a ssure . . . safety for all residents and person nel with in the ins titution. Id. at 324, 102 S.Ct. at 2462, 73 L.Ed.2d at 42. -30- of an advisor who understands the psychiatric issues involved. Williams, 319 Md. at 509, 573 A.2d at 820-22. Although the holding in Williams rested on procedural due process grounds, Chief Judge Robert Murphy, writing for the Court, considered the substantive due process implications of Section 10-708 in light of the Supreme Court s decision in Harper, 494 U.S. at 210, 110 S.Ct. at 1028, 108 L.Ed.2d at 178: Section 10-708, like the administrative policy approv ed in Harper, implicitly recognizes that the involuntarily committed inmate has a significant constitutional liberty interest to be free from the arbitrary administratio n of antipsych otic drugs. In this regard, the cited provisions of the Health-G eneral Artic le evidence the intention of the legislature to create a justifiable exception that the drugs will not be administe red to an inm ate unless he is mentally ill and a danger to himself or others. In other words, the Maryland statute limits the authority of the panel to order that su ch drugs b e involunta rily given to Williams for any purpose other than f or his men tal disorder an d only to treat the illness which renders him a danger to himself or others. Williams, 319 Md. at 508 , 573 A.2d at 820 (second emph asis added). In Harper, the case upon which Williams relied, the Supreme Court considered whether a judicial hea ring was re quired bef ore the State could forcibly administer antipsychotic drugs to a prisoner with a serious mental disorder. The Court upheld a Washington state administrative policy, which provided that an inmate in a state institution could only be involuntarily medicated if he were afforded a hearing for which he was provided notice thereof, and at which was entitled to present evidence, cross-examine witnesses, to be represented by a lay a dvisor, and from which he was entitled to appeal an adverse decisio n. Harper, 494 U.S. at 215-16, 236, 110 S.Ct. at 1033-34, 1044, 108 L.Ed.2d -31- at 193-94. Because of the procedural protections in the Washington policy, the Court did not require a judicial hearing prior to forcible administration of medication, commenting that given the medical nature of the decision to forcibly medicate, an inm ate s interests are perhaps better served, by allowing the decision to medicate to be made by medic al professionals rather than a judge. Id. at 231, 110 S.Ct. at 1042, 108 L.Ed.2d at 204. In explaining these procedural due process safeguards, Justice Kennedy, writing on behalf of the Court, explored the factual circumstances that must exist before the State may administer antip sychotic drugs, the substantive due process framework, noting that the extent of a pris oner s r ight . . . to avoid the unwanted administration of antipsychotic drugs must be defined in the context of the inmate s confinement. Id. at 222, 110 S.Ct. at 1037, 108 L.Ed.2d at 198. Justice Kennedy emphasized the balance that must be struck between the medical interests of the prisoner and the needs of the State: Moreover, the fact that the medication must first be prescribed by a psychiatrist, and then approve d by a reviewing psychiatrist, ensures that the treatment in question will be ordered on ly if it is in the prisoner s medical interests, given the legitimate needs of his institution al confine ment. *** There are few cases in which the State s interest in combating the danger posed by a person to both hims elf and oth ers is greater than in a prison environment, which, by definition, is made up of per sons with a demonstrated proclivity for antisocial criminal, and often violent, conduct. . . . We confront here the State s obligations, not just its interests. The State has undertaken the obligation to provide prisoners with medical treatment consistent not only with their own medical interests, but also with the needs of the institution. Prison administrators -32- have not only an interest in ensuring the safety of prison staffs and adminis trative personnel, . . . but also the duty to take reasonable m easu res f or the prisone rs own s afet y. *** Where an inmate s mental disability is the root cause of the threat he poses to the inmate population, the State s interest in decreasing the danger to others necessarily encompasses an interest in providing him with medical treatment for his illness. Id. at 222, 225-26, 110 S.Ct. at 1037-39, 108 L.Ed.2d at 198-20 1 (citations omitted). Prim arily, the General Assembly rejected the possibility that forcible administration of medication could be p ermitted sole ly based upo n involun tary commitm ent and the possibility of continued confinement by refusing to adopt the original lang uage of H ouse Bill 588 permitting the forcible a dministration of medic ation if the individual was at substantial risk of remaining seriously mentally ill for a significantly longer period of time or with no significant relief of the m ental illness. Ra ther, the Legislature enacted a version of House Bill 588 consistent with the M aryland Psychiatric Society s proposed amendm ent, incorporating a dangerousness standard within Section 10-708 (g), obviously to limit the breadth of the original bill which would h ave perm itted forcible medication of involun tarily committed individuals based upon their diagnoses. When the Legislature enacted Section 10-708 (g), it also purposefully adopted the procedural due process requirements and substantive due process saf eguards itera ted in Williams and its foundational precur sor, Harper. In this regard, the Harper opinion must be viewed in the conte xt of its review of a Wa shington sta te policy that permitted f orcible -33- medication of psychotic drugs on a mentally ill inmate based solely upon the impact that h is disorder had on prison secu rity: In order f or involun tary medication to be approved, it must be demonstrated that the inmate suffers from a mental disorder and as a result of that disorder constitutes a likelihood of serious h arm to himself or o thers and/o r is gravely disabled. Id. at 243-44, 110 S.Ct. at 1048, 108 L.Ed.2d at 212 (Blackmun, J., concurring), quoting Lodging, Book 9, Policy 600.30 , p.1. In fact, the Washington policy under review in Harper is suggestive of the langu age of Section 10 -708 (g): [I]f a psychiatrist determines that an inmate should be treated with antipsychotic drugs but the inmate does not consent, the inmate may be sub jected to involuntary trea tment with the drugs only if he (1) suffers from a mental disorder an d (2) is gravely disabled o r poses a lik elihood of serious h arm to himself, othe rs, or their prop erty. *** Gravely disa bled me ans a con dition in which a person, as a result of a mental diso rder: (a) [i]s in danger of serious physical harm resulting from a failure to provide for his essential human needs of health or safety, or (b) manifests severe deterioration in routine functioning evidenced by repeated and escalating loss of cognitive o r volitional co ntrol over his or her action s and is not receiving such care as is essential for his or her health or safety. Likelihood of serious harm means either: (a) [a] substantial risk that physical harm will be inflicted by an individual upon his own person, as evidenced by threats or attempts to commit suicide or inflict physical harm on one's self, (b) a sub stantial ri sk th at ph ysical harm will be infli cted by an individual upon another, as evidenced by behavior which has caused such harm or which places another person or persons in reasonab le fear of sustaining such harm, or (c) a substantial risk that physical harm will be inflic ted by an individual upon the property of others, as evidenced by behavior which has caused substan tial loss o r dama ge to the proper ty of othe rs. -34- Harper, 494 U .S. at 215 & n.3, 1 10 S.C t. at 1033 & n.3, 1 08 L.E d.2d at 1 93-94 & n.3 (citations omitted). 15 Obviously, the danger alluded to in the Washington policy was that 15 Immedia tely after the decision in Harper, the Supreme C ourt denied certiorari in Charters v. United States, 863 F.2d 302 (4th C ir. 1988), a ca se in which it had granted a stay of judgm ent pen ding its r eview of the c ertiorari p etition in that case . See Charters v. United States, 494 U.S. 1016, 110 S.Ct. 1317, 108 L.Ed.2d 493 (1990). In Charters, the Government sought to forcibly medicate an involuntarily committed individual who had been declared incompetent to stand trial for a federal crim e, who w ithout med ication, wo uld likely remain confin ed in an institution indefin itely. After deciding that a judicial hearing was not necessary prior to the forced administration of medication, the United States Court of Appea ls for the Fo urth Circuit re manded the case to th e district court in order to require that before medication is administered the appropriate medical professional reevaluate the situation in light of present conditions and make a new decision before p roceed ing. Charters, 863 F.2d at 311-12. Various f ederal cou rts of appea ls have interpreted the decision in Harper to require proof, befo re fo rcibly medicating an involu ntarily comm itted individua l because o f his dangerousness, that the individ ual is dange rous within the contex t of his confinem ent within the institution. In United States v. Weston, 255 F.3d 873 (D.C. Cir. 2001), Weston had been placed in solitary confin ement un der constan t observation characterized as the warehousing of Wes ton in a psycho tic state in a Federal Correctional Institute awaiting trial on two counts of murder, one count of attempted murder, and three counts of using a firearm in a crime of violence. The United States Court of App eals for the District of Columbia examined the application of Harper s holding, and found that the record was insufficient to support forcible administration for that purpose because Weston s current confinement total seclus ion and co nstant obse rvation ob viated any significant danger he mig ht pose to hims elf or ot hers a t the institu tion. Id. at 878. In Jurasek v. Utah State Hospital, 158 F.3d 506 (10 th Cir. 1998), the court interpreted a state hospital policy permitting forced medication if a hearing committee determines that the patient is, or will be, gra vely disabled a nd in need of medication treatment or continued medication treatment, or, without the medication treatment or continued medication treatment, the patient poses of will pose, a likelihood of serious harm to himself/herself, others, or their property. Id. at 509. The court noted that the dangerousness finding needed to forcibly medicate must be the individual s immediate dangerousness within his current confinem ent. Id. at 512 (stating that any finding of dangerousness made at a commitment hearing is of dub ious relevan ce to the da ngerousn ess determ ination needed to forcibly medicate unless such a determin ation is mad e close in tim e to the hospital s decision to medicate ). (continued...) -35- which is current, or manifest in the institution. It is within this context of leg islative history and caselaw that we explore the question before us and conclude that the dangerousness requirement of Section 10-708 (g) refers to the institutional setting, rather than prior or future dangerousness. Clearly, the add ition of the d angerou sness requ irement in Section 10-708 (g) in 1991 w as a limitation o f the overly bro ad langua ge of the o riginal bill, which would have permitted the Department to do what it asks us to sanction here. The addition, however, of the procedural due process provisions and substantive due process standards in Section 10708 (g) as a result of Williams and Harper does not support the Department s interpretation. Further, to adopt the Department s reasoning would provide an anomalous result when the forcible administration of m edications to involuntarily co mmitted ind ividuals in ac ute emergency situations, governed by Section 10-708 (b)(1), is considered. Under Section 10708 (b)(1), an ind ividual ma y be administe red medic ation on an involu ntar y basis in an emergency where the individual presents a danger to the life or safety of the individual or others. It would be incongruous indeed to permit the State to continually for cibly medicate 15 (...continued) In Morgan v. Rabun, 128 F.3d 694 (8th Cir. 1997), the Court of Appeals for the Eighth Circuit explored the limited role of the court in questioning whether a doctor who prescribed medication, exercised professional judgment in determining dangerousness. The Missouri statute at issue in the case stated that no patient may be subject to forced medication unless it is determined by the head of the facility or the attending licensed physician to be necessary to protect the p atient, resident, client, or others. Id. at 697, quoting Mo. Rev. Stat. § 630.1 75.1 (1986). When considering the doctor s dangerousness assessment, the court stated that given the nature of the crimes he was accused of , his unstable a nd hostile demeanor, the fact that he h ad destroyed h ospital prop erty, and his own admissions that he was going cra zy and losing control, Morgan was potentially dangerous to himself and others in the state hospita l. Id. at 697-98. -36- an individual under Section 10-708 (g) in a nonemergency with no finding of dangerousness within the context of the state institution, while permitting the intermittent forcible medication for an acute emergency episode within the institution under Section 10-708 (b)(1). Under th e Departm ent s reason ing, there would be no need for the emergency administration of drugs, b ecause an y involuntarily committed patient could be c ontinuou sly medic ated in o rder to, so lely, avoid continu ed hos pitalizatio n. The Department s interpretation of Section 10-708 also would render the dangerousness finding required by the Clinical Review Panel redundant. Section 10-708 (b)(2) permits the S tate to forcibly m edicate indiv iduals involuntarily com mitted to a state institution; individuals may be involuntarily committed to a state institution if they are dangerous to themselves or others in the general community. If Section 10-708 (g) requires a showing only that the indiv idual is dangerous to himself or others in the general com mun ity, it, then, would mandate a finding which was already made during a commitment proceeding, such as in the present case, which to make matters more complicated, was made based upon a presumption premised upon the charges filed against Kelly. As the Court of Special Appeals stated in Martin, such an interpretation of Section 10-708 (g) would obviate the intent of the General Assembly, by allowing the General Assembly s scheme for the protection of such individuals [to be] easily avoided. 114 Md. App. at 529, 691 A.2d at 257. The Department contends that not perm itting the State to forcibly medicate solely for release will lead to illog ical results because m any individua ls could be c onfined in definitely in a state institution without medication. That may be a possibility. It certainly was -37- considered by the Legislature in 1991 w hen it enacted Section 10-708 (g), because one of the assumptions explicated by the D epartmen t of Legisla tive Service s in its fiscal imp act note for the pro posed am endmen ts to Hous e Bill 588 w as that: Some individuals who are involuntarily admitted for an acute mental illness and who may be competent to make treatment decisions (and, therefo re, are not app ropriate for guard ianship) may refuse medication and remain in the facility, untreate d with medication, for an extended period of time. Department of Fiscal S ervices, Fiscal Note Assumption s to Hous e Bill 588 (1 991) (em phasis in original).16 In the present cas e, Kelly was c ommitted involuntarily to a state institution a s a result 16 The issue of lengthy confinement in a mental institution, absent medication, was explored by the Supreme Court in Sell v. United States, 539 U.S. 166, 123 S.Ct. 2174, 156 L.E d.2d 197 (2003), w hen Justice Breyer, writing for the Co urt, remarke d: The defenda nt s failure to take drugs voluntarily, for example, may mean lengthy confinement in an institution for th e mentally ill and that would diminish the risks that ordinarily attac h to freeing without punishment one who has committed a serious crime. We do not mean to suggest that civil commitment is a substitute for a criminal trial. The Government has a substantial interest in timely prosecutions. And it may be difficult or impossible to try a defendant who regains competence after years of co mmitme nt du ring which m emo ries m ay fade and evidence may be lost. The potential for f uture confinement affects, but does n ot totally underm ine, the streng th of the need for prosecution. Id. at 180, 123 S.Ct. at 2184, 156 L .Ed.2d at 212. See also Cochran v. Dysart, 965 F.2d 649, 651 (8th Cir. 1992) (stating that the gover nment s in terest in treating a n involun tarily committed individual to improve h is condition a nd obtain h is release did n ot justify forcible administration of med ication). -38- of having be en adjudg ed incom petent to stand trial, after having been presumed to be dangerous based up on the cha rges filed ag ainst him. T he Clinical Review Panel, who recommended forcibly administerin g medica tion to Kelly, as w ell as the ALJ who approved the recommendation, premised their decisions upon the Circuit Court s presumption of dangerousness, in juxtaposition to the testimony that Kelly was not exhibiting behavior that was dangerous to him self and others in the institution. In this they were wrong. Section 10708 (g) defines the governmental interests that may justify the forcible administration of medication to an involu ntarily comm itted individua l an individual must be at substantial risk of continued hospitalization because of either remaining seriously mentally ill with no significant relief of the mental illness symptom s, or remaining seriously mentally ill for a significantly long er period of time with mental illness symptoms, that cause the individual to be a danger to himself or to others in the context of the institution. Because there was no finding that Kelly is a danger to himself or o thers during his c onfinem ent in Perkin s Hospital, a prerequisite to forcible administration of medication pursuant to Section 10-708 (g), we shall aff irm th e jud gme nt of the C ircuit Co urt for Baltim ore C ity. JUDGMENT OF THE CIRCU IT COURT OF BALTIMORE CITY AFFIRMED. COSTS TO BE PAID BY APPELLANT. -39- IN THE COURT OF APPEALS OF MARYLAND No. 47 September Term, 2006 ______________________________________ DEPARTMENT OF HEALTH AND MENTAL HYGIENE v. ANTHONY KELLY ______________________________________ Bell, C.J. Raker *Wilner Cathell Harrell Battaglia Greene, JJ. ______________________________________ Conc urring O pinion by Wilne r, J., which Harrell. J., joins. ______________________________________ Filed: March 14, 2007 *Wilner, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adop tion of this opinion. I concur in the Court s judgment because, on this record, I think it is right. My concern is that the question articulated by the Department is not the one actually presented in the case, and I fear that the answer that the Court proposes to give to that question may produce a result that is inapprop riate, inconsisten t with the leg islative intent, an d wholly illogical. In a nutshell, the C ourt propo ses to hold th at, whene ver the psychia trists in a State hospital to which a criminal defendant has been committed by a court pursuant to § 3-106 of the Crimin al Procedu re Article (C P) believe it n ecessary to forcibly medicate the person, the focus must always be on whether, without the medication, the person will be dangerous to self or others within the in stitutional setting. In the Court s view, whether, without the medication, the person will have to remain hospitalized for a significantly longer period than would otherwise be necessary because he or she will continue to be a danger to self or others upon release to the commu nity is, as a matter of law, irrelevan t. In my view, that is much too broad a statemen t. It is one not in k eeping w ith § 10-708 (g)(3) of the Health-G eneral Artic le (HG) and creates an absurd Catch-22" anomaly that cannot possibly have been intended by the Ge neral A ssemb ly and tha t is not C onstitutio nally requ ired. It is important a t the outset to f ocus only on what is before us a criminal defendant committed by a court pursuant to CP § 3-106. We are not dealing here with a patient committed through civil proceedings, whose ultimate release is governed by HG §§ 10-801 through 10-813 (other than § 10-803, which deals with voluntary admissions). Although some of the analysis may be the same in both situations, there are differences in both the statutory language and the procedures for obtaining r elease f rom the confin emen t. A criminal def endant co mmitted p ursuant to C P § 3-106 may not be re leased by the h ospital, but only by the court, and, unlike the civilly committed patient, he or she is not entitled to a jury trial on the issues pertinent to release. Th us, with resp ect to the crim inal defen dant, there is a clear and direct connection between the criteria set forth in H G § 10-708 (g)(3), governing forcible medication and CP § 3-106, governing release from hospital confinement that needs to b e considere d. My analysis in this concurring opinion is in the context of the criminal defendant I think that, in determining whether the focus in that setting should be on dangerousness within the institutional setting or dangerousness within the broader com mun ity, the courts must look at the na ture and purpose o f the prescribed med ication. If the purpose of the medication , alone or in combination with other medications or therapies, is simply behav ior control to calm the p atient and k eep him o r her calm a nd comp liant I agree that the focus must be limited to dangerousness within the institutional setting. If, on the other hand, the State can demonstrate that the purpose of the medication, alon e or in combination with other medications or therapies, is not just to suppress but to treat and ameliorate the symptoms that caused the patient to be committed under CP § 3-106 in the first plac e, the focu s mu st necess arily b e on whether (1) without the medication, those symptoms will not be tre ated or am eliorated and the patient w ill therefore rem ain ineligible for release und er CP § 3 -106, and ( 2) with the m edication, th e patient w ill likely become eligible for release. The burden is on the State to show both that the prescribed medication is for that broader purpose and that, alone or in conjunction with other medications or -2- therapies, it has a reasonable chance of achieving that objective without undue side effects. I concur w ith the Cou rt s judgment in this case because I do not believe that showing was made here. As somew hat of a be lated preface, it is im portant to no te that the case before us is moot, a matter overlooked by the Court. As we most recently held in In re Kaela C., 394 Md. 432, 452, 906 A.2d 915, 927 (2006), a case is moot when there is no longer any existing controversy between the parties at the time that the case is before the court, or when the court can no longer fashion an effective remedy. See also Hammen v. Baltimore Police, 373 Md. 4 40, 449 , 818 A .2d 112 5, 1131 (2003 ) and ca ses cited there. This case involves our review of an order issued by an Administrative Law Judge on September 1, 2005, approving the forcible medication of Kelly. By its own terms, however, that order was effective for only 90 days; it expired after the 90 th day, and, so far as this record reveals, neither it nor any renewal of it remain s in effect. C urrently, therefor e, there is no o rder in effe ct for us to review. When the challenged order has expired , the case is moot. Coburn v. Coburn, 342 Md. 244, 250 , 674 A.2d 951 , 954 (1996). Although our routine response when a case becomes moot is to dismiss the appeal without addressing the merits, which is what we did in Dept. of Health v. Martin, 348 Md. 243, 703 A.2d 166 (1997), we have, on rare occasions, exercised our discretion to consider the merits of such an appeal where the urgency of establishing a rule of future con duct in matters of importa nt public co ncern is im perative and manifest. Matthews v. Park & Planning, 368 Md. 71, 96, 792 A.2d 288, 303 (2002), quoting from Lloyd v. Supervisors of -3- Elections, 206 M d. 36, 43 , 111 A .2d 379 , 382 (1 954). See also Hammen v. Baltimore Police, supra, 373 Md. at 450, 818 A.2d at 1131. Such an urgency exists if the public interest clearly will be hurt if the question is not immediately decided, if the matter involved is lik ely to recur frequently, and its recurrence will involve a relationship between government and its citizens . Id. This is such a case, so the Court is th erefore righ t to consider the matter. Decisions involving the forcible medication of criminal defendants committed to State hosp itals pursuant to CP § 3 -106 are m atters of imp ortant public concern a nd involv e a relationsh ip between the government and its citizens. The questions raised in this case are likely to recur and will nearly always be moot before an appeal can be perfec ted and reso lved. Kelly remains hospitalized and is continuing to refuse medication. A ny order for forcible medication may not last more than 90 days, although it may be renewed if the patient continu es to ref use the medic ation. See HG §10 -708(m). As the Court points out, Kelly was charged in the C ircuit Court for Montgomery County with two coun ts each of first degree murder, rape, burglary, and robbery with a deadly weapon, one count of first degree assault, and assorted lesser charges. It appears that the murder charges qualified Kelly for the d eath pena lty. Observing h is behavior at a pretrial hearing, the court was concerned as to whether he was com pete nt to stand tria l. Ac cord ingly, it held a competency hearing an d referred K elly to Clifton T . Perkins H ospital, a State maximum security psychiatric hospital, for evaluation. The evaluation report concluded that Kelly was n ot com petent to stand tria l becau se, as the result of delusional symptoms -4- derivative of a m ental dis order, he was unable to understand the object of the proceedings against him or assist in his defense. The report also found that Kelly was dangerous because he had a history of assaultive and violent behavior and was charged with serious crimes. In June, 2004, after conducting a hearing, the court agreed that Kelly was not competent to stand trial and that, because he was dangerous to himself or the person or property of others in the com munity, he could not be released. In that regard , the court observed that [g]iven the gravity of the charges p ending ag ainst the def endant, it is fair to say that, if proven, the charged actions of the defendant represent a risk to the public of the most dangerous degree. (Emphasis added.) Kelly was therefore committed to Perkins pursua nt to CP § 3-10 6(b). The commitment, under the statute, is to remain until the court is satisfied that the defendant no longer is incompe tent to stand trial o r no longe r is, because of . . . a mental disorder, a danger to self or the person or property of o thers. CP § 3-106(b )(1). It is implicit in that statutory requirement that Kelly will remain committed until such time as the court is satisfied that he is no longer incompetent to stand trial or no longer a da nger to himself or others in the comm unity. In any release decision based on lack of dangerousness, the court s f ocus w ill clearly be indee d, must be -- on da ngerousn ess in the community, not dangerousness in the institutional setting. That proposition is not contested by Kelly and seems to be acknowledged by the Court. Because, despite his belief that he is not mentally ill, Kelly has never sought to convince the court that he is no longer a danger to himself or to the person or property of othe rs for purposes of CP § 3-106(b), and because the court has -5- not come to any such conclusion on its own, its finding of dangero usne ss in the c omm unity, made in June , 2004, r emain s extan t. As the Court no tes, notwiths tanding the findings o f the psychiatric evaluation and the judicial determination to the contrary, which he has never challenged in court, Kelly continued to maintain that he does not have a mental disorder and is not delusional, a nd, in Novemb er, 2004, he refused to continue taking the antipsychotic medications that had been prescribed for him and that he had been taking since June. The hospital then convened a clinical review panel pursuant to HG § 10-708(c) to examine whether those medications should be administered over his objection. Section 10-708(b) states the general rule that medication may not be admin istered to an individual who refuses the medication, ex cept (1) [i]n an emergency, on the order of a physician where the individual presents a danger to the life or safety of the individual or others; or (2) [i]n a nonemergency, when the individual is hospitalized involuntarily or committed for treatment by order of a court and the medication is approved by a panel under the provisions of this section. Section 10-708(g) sets forth the criteria, or requirements, for approval of forced medication by the panel in the non-emergency situation. Th at is what is at issue in this ca se. The sec tion provide s, in relevant p art: The panel may approve the administration of medication or medications and may recommend and approve alternative medication s if the pane l determines that: (1) The medication is prescribed by a psychiatrist for the purpose of treating the ind ividual s mental disorder; (2) The administration of medication represents a reasonable exercise of professional judgment; and -6- (3) Without the medicatio n, the individu al is at substantial ris k of continu ed hospita lization beca use of: (i) Remaining seriously mentally ill with no significant relief of the menta l illness symptoms that cause the individual to be a danger to the individual or to others; [or] (ii) Remaining seriously mentally ill for a significantly longer pe riod of time w ith mental illness symptoms that cause the in dividual to b e a dang er to the indiv idual or to others . . . (Emphasis add ed). Section 10-708(h)(1) requires that the panel base its decision on its clinical assessment of the information contained in the individual s record and information presented to the panel. Subsection (h)(3) adds that the panel may not approve the administration of medication if alternative treatments a re available a nd are acc eptable to both the individual and the facility personnel who are directly responsible for implementing th e individual s treatme nt plan. There does not se em to be a ny serious disp ute here tha t the medica tions, or at least some of them, were prescrib ed by a psychiatrist for the purpose of treating Kelly s mental disorder. Nor, other perhaps than as a part of his claim that the panel applied the wrong standard in its consideration of his alleged dangerousness to self or others, has he directly attacked the panel s conclusion that administration of the proposed medication represents a reasonab le exercise of professional judgment. The basic issue in this case is whether the panel and the ALJ erred in concluding that, without medication, which Kelly refused to take based on his belief that he was not mentally ill at all, Kelly would be at substantial risk of continued hospitalization because e ither (1) he w ould rema in seriously me ntally ill with no -7- significant relief of mental illness symptoms that cause him to be a danger to himself or others, or (2) he wou ld remain se riously mentally ill for a significantly longer period of time with mental illness symptoms that cause him to be a danger to himself or others. In that regard, the more specific issue is whether, in determining whether his symptom s cause him to be a danger to himself or others, the panel and the ALJ are limited to determinin g dangerousness in the context of his confinement in the hospital or may consider w hether, if relea sed, he w ould be a d anger to himself or others in the com mun ity. The panel in this case confirmed a mental disorder that consisted of Delusional Disorder, Persecutory and Grandiose Type, based upon the following symptoms: Delusions regarding his criminal case, that his charges were falsely pressed against him; delusions regardin g having special abilities; that his attorney and the judge are involved in the case against him. Upon that diagnosis, it approved nine medications, six of which were to treat the symptoms of his mental disorder. Although we may infer that the panel members knew the nature of and purpose for each medication, it made no findings in that regard with respect to the individual medications what each wa s intended to do, individu ally or in combination with the other medications or therapie s. Rather, the panel determined generally that the benefits of taking those medications include reduction in the symptoms of his mental disorder and that the benefits of refusing the medications would include lack of exposure to side eff ects. The panel found that alternative treatment milieu therapy and psychoe ducatio nal eff orts ha d not be en eff ective. The critical finding of the panel was that, without the recommended medications, -8- Kelly would b e at substan tial risk of con tinued hos pitalization because of (1) remaining seriously mentally ill with no significant re lief of the m ental illness symp toms that ca use him to be a danger to himself or others and (2) remainin g seriously me ntally ill for a signific antly longer period of time with mental illness symptoms that cause him to be a danger to himself or othe rs. On the record available to us, it appears that those findings were conclusory in nature. We may assume that the panel had before it Kelly s medical and hospital records, but those records are not before us. The record that we have (and that the Circuit Court had) contains no delineation of the nature and purpose of the various medications, much less any clear, factually supported estimate of whether they would lik ely be effectiv e in sufficie ntly ameliorating Kelly s symptoms to the point of hastening his release by the court pursuant to CP § 3-106 (b). Kelly appealed the panel s decision. At a hearing before an Administrative Law Judge (ALJ), Dr. Robert Wisner-Carlson, Kelly s treating psychiatrist, testified at some length, commencing with his views about Kelly s prognosis: We have to talk about the prognosis for delusional disorder in general. There ha s been som e controve rsy about that. Delusional disorder is a chronic condition and without treatment tends to go on for years and decades once it starts, although it can wax and wane some. It is thought that it doesn t resp ond it has been felt that it doesn t resp ond we ll to treatment, but indeed more modern studies have indicated that that really relates to the patient s nonco mpliance with med ication treatm ent. And with medication treatment, it is fairly treatable, and that s been my experience treating the condition. So without treatment, his p rognosis is poor. W ith treatm ent, he h as a mo derate p rogno sis. -9- When asked about the treatment for Kelly s mental illness, Dr. Wisner-Carlson responded: The main treatment is the medication. He s also and that medication right now is Risp eridone. A nd the curre nt dose is eight milligrams. And he also takes a medication, Benztropine, for side effects, and the dose of that is one milligram. He s involved in various group therapies on the ward, types of informal, individual th erapy individual therapy of the ward, and the privilege level system, which is a form of behavior therapy, if you will. The doctor added that, of the nine medications approved by the panel, three were actually prescribed fo r oral admiss ion, with b ack-up m edication tha t he wou ld receive if he refused the oral medication and did not agree to take it by mouth. When addressing the benefit of the medications and their side effects, Dr. Wisner-Carlson opined that the anticipated benefits are to treat his mental disorder and to to the point that he could be allowed to be discharged from the hospital and that he s had minimal side effects from the medic ation. In summary, Dr. Wisner-Carlson asserted that Kelly would continue to respond and improve with medication but t hat, without medication he was at a substantial risk of continued hospitalization because of remaining seriously ill (1) with no significant relief of symptoms causing h imself to be a danger to himself or o thers, and (2 ) for a signif icantly longer period of time w ith symptoms causing h imself to be a danger to himself or others, and further, that without medication Kelly could not be discharged to a less restrictive setting. After the hearing, the ALJ concluded, as a matter of law, that the hospital had shown -10- by a preponderance of the evidence that Kelly should be medicated with the psychotherap eutic drugs approved by the panel. She found that Kelly was, in fact, delusional, that the proposed medications were prescribed for the purpose of treating the delusions, and thus K elly s mental disorder, and that the side effects of those medications were not so severe as to make their administration unreasonable.17 Kelly argued before the ALJ that, in determining whether, for purposes of HG § 10708(g)(3)( i) and (ii), a finding had to be made that, absent the medication, Kelly would be dangerous to himself or others while confined in the hospital, rather than to the public at large upon any release. The ALJ concluded that was not necessary, and that she could rely on the finding of dangerousness made by the court after the competency hearing. That was critical, for the evidence showed that Kelly had not been in seclusion or restraints, had not been on any spec ial observatio n, and had not had an y special intervention in regard to assaultiveness, and yet, even while not taking the medications, he had never threatened or assaulted an yone in the ho spital. Relying entirely on the decision of the Court o f Special A ppeals in Martin v. Dept. of Health, 114 Md. App. 520, 691 A.2d 252 (1997) a decision that this Court later vacated (see Dept. of Health v. Martin. supra, 348 Md. 243, 703 A.2d 166) and that therefore has utterly no precedential value the Circuit Court for Baltimore City, in Kelly s action for judicial review, reversed the ALJ s decision and concluded that HG § 10-708(g) require[s] 17 Kelly had been on the medication previously and had been monitored for side effects. He claimed that on one night he felt unwell, but the evidence showed that, by taking two Tylenol pills, the symptoms disappeared. -11- evidence that an involuntarily committed individual is a danger to himself or others in the facility to which he has been involuntarily admitted, rather than to socie ty generally upon his release. (Emphasis ad ded.) The question framed by the Department and addressed by the Court in this appeal is whether the Circuit Court erred in requiring the Department to show that an involuntary patient is a danger to himself or others in the facility before the patient may be forcibly medicated when, without medication, the patient will remain hospitalized indefinitely. (Empha sis added.) As noted, I think that is too broad a question. I believe that there is a threshold question which must be answered before the question framed by the Department can properly be considered: what is the purpose of each medication proposed to be forcib ly administered? Is it for patient managem ent in the hospital or for broad er therapeutic purposes, and if it is for the latter, is it likely to be effective? This is, to me, a critical distinction. If the medications are for patient management purposes, the panel, the ALJ, and the court on judicial review need consider only the dangerousness of the patien t within the hospita l, for tha t is all that is relevan t. If it is asserted, however, that the medications are being prescribed for the purpose of ameliorating the symptoms that preclude the patient from being released because, so long as the patient suffers from those symptoms, he or she will continue to be dangerous to self or others in the com munity, the panel, ALJ, and court must necessarily look to dangerousness outside of the h ospital s etting. O therwi se, § 10 -708(g )(3) wo uld hav e no m eaning . In that subsection, assuming the conditions in subsections (g)(1) and (2) are met, the -12- Legislature has affirmatively authorized forcible medication upon a finding that, without the medication, the patient is at substantial risk of continued hospitalization because of remaining seriously mentally ill (1) with no significant relief of the mental illness symptoms that cause the in dividual to b e a dange r to the individ ual or to others or (2) for a significantly longer period of time with mental illness symptoms that cause the individual to be a danger to the individual or to others. When the patient is under court commitment pursuant to CP § 3-106, the issue of dangerous for purposes of HG § 10-708(g)(3) must be viewed from the perspective of the comm unity, because that is what will control the patient s release. Without focusing on that, no finding could ever be made under § 10-708(g), and there could therefore never be any forcible medic ation of such a patient except in an emerg ency situa tion un der HG § 10-7 08(b)(1 ) or strictly fo r behav ior con trol. Kelly, and to some extent the Court, place weight on some language in Washington v. Harper, 494 U.S. 210, 110 S. Ct. 1028, 108 L. Ed.2d 178 (1990). Th at case, to me , is largely irrelevant. It dealt with the forced medication of a mentally ill prison inmate, who would remain incarcerated to serve his term with or without the medication. Naturally, the State s focus and that of the Supreme Court was on dangerousness within the institution; no other focus would be relevant. HG § 10-708(g) does provide , and, to m e, requires, a different focus, at least when the patient was committed pursuant to CP § 3-106. The legislative history of HG § 10-708, recounted by the Court, demonstrates that the Legislature intended to put tight reins on the forced medication of involuntarily committed patients and not to allow the kind of regime portrayed in One Flew Over Th e Cuckoo s Nest. -13- If the doc tors belie ve that f orced m edicatio n is nec essary, it is incumbent upon th em to establish precisely why the medication is both necessary and would be effective to achieve the objective set forth in the statute. Bald, general, unsupported opinions that the medication is necessary or would be helpful do not suffice. The record should contain clear evidence of what each proposed medication is designed and effective to do, alone or in combination with other medications and therapies, and precisely how and why, without that medication, the conditio ns stated in § 10- 708(g )(3) will , in fact, e xist. The record bef ore us fails to show that such evidence was pres ented to the panel, an d even the record bef ore the A LJ, which is somewhat more detailed, is legally insufficient. That is why I would affirm the judgment of the Circuit C ourt. Judge Harrell has authorized me to state that he joins in this concurring opinion. -14-

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