Quick Briefing on Riese Hearings
Statement of facts
In the Riese case, the conservatee was under a T-con. Anything legal proceedings beyond the T-con was dehors the record. The appellant had been discharged to a board and care. However, she decompensated and was returned to the hospital. During this hospital stay, appellant’s medication was changed to a new med, with orders providing for intramuscular injections if she refused. Appellant continued to suffer from swollen feet, urinary problems, shaking, memory loss and seizures. Appellant attributed these problems to her medications. However, her treating doctor and nursing staff contend that appellant was delusional about the medications. Appellant filed a class action suit.
Court of Appeal's decision
The court of appeal provided these below reasons for ruling in appellants favour and issued a remittitur ordering that the judgment be reversed and the case remanded for new proceedings consistent with the appellate court’s findings. Writ of certiorari was denied as the hospital filed a petition with the Supreme court of California.
First, involuntarily committed patients retain the right to refuse medical treatment in mental health facilities, unless per a court order finding them unable to. In appellant’s case appointment of an LPS conservator under statutory provisions does not automatically mean an adjudication of incompetence or incapacity to make treatment decisions about one's own body West's Ann.Cal.Welf. & Inst.Code § 5350. This line is usually negated at the P-con hearing where they make the finding of medication consent at the same time so its moot usually.
Involuntarily committed patients who are receiving medications as a result of their mental illness must be given, as soon as possible after the 5150 information about the effects & side effects of medications. It must also include why the medication is being given, the likelihood of improvement without medication, alternative treatments, and the dosage and frequency of medication. Welf. & Inst.Code § 5152(c)
Outside of LPS Conservatorship, it is one of the cardinal principles of WIC to protect the rights of patients in mental hospitals. This translates into patients may not be presumed to be incompetent solely because of their hospitalization hold status. Welf. & Inst.Code §§ 5326.5(d), 5331.
Absent a judicial determination of incompetence, antipsychotic drugs may not be administered to involuntarily committed mental patients in non-emergency situations without that patient's informed consent.
This brings us to what is legally informed consent?
In order to make this determination the trial court must hold an evidentiary hearing aimed at answering this question of whether the patient is able to (1) understand, (2) knowingly and intelligently act upon this information given him, and (3) any determination of incapacity must be supported by clear and convincing evidence.
The court in determining (3) incapacity must consider only issues relevant to assessment of a patient's ability to consent to treatment. Welf. & Inst.Code §§ 5152(c), 5325, 5326.
The court shall consider ability to consent to treatment in a several prong test, (1) whether patient is aware of his situation, (2) whether patient is able to understand benefits and risks of proposed medication; and (3) whether the patient is able to understand and knowingly and intelligently evaluate information required to be given to him for informed consent, (4) or otherwise participate in treatment based on a rational thought processes.
In determining whether involuntarily patients have competency to consent to treatment if there is not frank psychosis or hallucinatory perception that create a clear nexus with his medication decision making abilities, the court should infer that the patient is utilizing rational logic.
If involuntary patients are determined to possess capacity to give informed consent to use of antipsychotic drugs, and refuse to give such consent, patients may not be required to undergo medication treatment. BUT if involuntary patients are determined incapable of informed consent to treatment the patient may be required to accept drug treatment which has been medically prescribed.
If an involuntary patient is determined to be incapable of informed consent or refuses treatment with antipsychotic drugs past the 14 days, then new consent for such treatment must be obtained from either responsible relative of patient, patient's guardian, or court-appointed conservator. West's Ann.Cal.Welf. & Inst.Code §§ 5326.2, 5326.7(g).
There is some discrepancy in this statement in that most counties mandate a new Riese hearing every new hold period after the 72 hour period and for LA county, one during the T-con period (T-con Riese hearings).
Antipsychotic drugs, as defined in Welf & I C §5008(l), may not be administered to an individual held under §5150 (72-hour hold), §5250 (additional 14-day intensive treatment), §5260 (second additional 14-day intensive treatment for suicidal persons), or §5270.15 (additional 30-day intensive treatment for gravely disabled persons, but only if application of this section is authorized by county) without that individual's consent, unless (1) an emergency exists or (2) there has been a specific judicial determination that the patient lacks the capacity to give informed consent. Welf & I C §5332.
California Conservatorship Practice (Cal. CEB 2021) §23.25
A doctor’s determination that a patient is mentally unable to consent to drug treatment is not exempt from judicial review merely because of the assumption that medical opinions are “predicated” upon unimpeachable scientific foundation. Without judicial review, physicians would hold great degrees of power over patients and this places patients and doctors at risk of discretionary abuse. This cannot be squared with the intent of the mental health statute or value society places upon the autonomy of an individual.
"If those bringing the suit genuinely had sought informed consent, existing administrative procedures could have been used".
This is particularly misleading as at this time we do not have legal remedies for medication consent. At the 14 day hold the patient can only avail themselves of the cert review hearing or a writ petition. These are in place for the patient to address "illegal [psych] confinement". I understand that Riese hearings if won result in the patient being discharged too. However if Riese hearings were removed, there could be risk for the patient to receive antipsychotics against their will even as they're waiting for their writ date. It may seem short but heavy duty antipsychotics can make the time craw much slower.
Application to a real-world example
Riese was a very successful hearing at the time considered a seminal case in preserving patient rights. However, there are many proponents who do not like what Riese has done to the involuntary hold schema in that it results in many inappropriate and early discharges. Ideally the Riese opinion has laid out a decent legal foundation for safeguarding patient’s rights while ensure treatment happens for those in need but as we all know that black letter law and the way judges/ bench officers interpret the law varies drastically.
Analyzing this opinion taken from a website which describes the author's displeasure for Riese proceedings. The author in this sample provides their reasoning which does hold some merit to their stance; however, there are some key facts lacking in the fact pattern so additional legal explanation has been added.
“California psychiatrist Dr. Stephen Haynes describes a patient of his who prevailed in a Riese hearing when she said she feared tardive dyskinesia (although she did not suffer from it) and correctly identified it as a movement problem with the tongue. He kept her in the hospital, untreated, for the full 17 days and then released her. Four days later she was rehospitalized on the same grounds as before:she had threatened the lives of children living next door to her. Again, there was a Riese hearing, again she said the magic words, “tardive dyskinesia,” and again she prevailed. At the end of that 17 days she was released and was rehospitalized again a few days later: same grounds. This time she may have herself tired of the game and decided not to attend the Riese hearing. Because she did not attend, the hearing officer allowed treatment to proceed”.
Although the author of this statement does have merit to what they say, they cannot completely discount the Riese hearing process without more facts in the record.
If we shall apply, the factors that the court should rely on when making its judgement, (1) whether patient is aware of his situation, (2) whether patient is able to understand benefits and risks of proposed medication; and (3) whether the patient is able to understand and knowingly and intelligently evaluate information required to be given to him for informed consent, (4) or otherwise participate in treatment based on a rational thought processes, then the trier of fact may suggest that without further evidence, the hearing officer was wrong to rule in the patient's favour at this Riese hearing. Now if we were to look at this from an appellate prospective, we shall first note several problems. First this record is sparse about what Sx the patient was presenting at the time of the holds. This matters as two of the prongs depend on that. Secondly, the patient did testify about some of the risks of the medication. Patient did not opine in the available record what their proposed alternatives would be nor if they were able to participate in the treatment meaningfully while unmedicated. Was there a history of decompensation on the floor when the patient was untreated. As the controlling authority suggests, the court shall consider history of mental illness, history of medication compliance and the result from past noncompliance. This may apply to LPS but by a parity of reasoning it can be equally construed within the Riese framework dictating that the court shall consider whether the patient is aware of his situation (on vs off meds) and otherwise participate in treatment based on a rational thought process. Now shall we assume that all of these other factors were not met, the patient was wrongfully discharged. The main fact supporting this belief is that the patient had a high rate of recidivism in a short period of time. However, without more context, this short excerpt can paint a damaging picture for Riese hearings which are a cornerstone for patient rights.
The author also asserts:
In practice grafting the right to refuse on the LPS time limit has meant that it becomes very difficult to treat refusing patients at all. It generally takes five days to get a Riese hearing so that almost a third of the time is wasted right there.
Technically CEB states that:
Capacity hearings must be conducted within 24 hours after the petition is filed at the psychiatric facility where the person is receiving treatment. Welf & I C §5334(a)–(b). Continuances are allowed, but in no event should the hearings be held beyond 72 hours after the petition is filed. Welf & I C §5334(a).
Granted the law does not often translate to practice so this very may be the reality for most counties. However, there are counties that do follow these timelines strictly.
The person who is the subject of the capacity hearing may appeal the determination to the superior court or court of appeal. Welf & I C §5334(e)(1). All appeals are subject to de novo review. Welf & I C §5334(f).
Juvenile Dependency and