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Patients facing forced medication have right to counsel, Md. high court says

Involuntarily committed mental health patients have the right to counsel when administratively appealing a clinical review panel’s decision that they be forcibly medicated despite not presenting an imminent safety danger to themselves or others, Maryland’s top court has ruled.

This right to counsel extends up to the day of the administrative hearing unless knowingly and voluntarily waived by the patient, the Court of Appeals held Friday.

The waiver need not be the formal on-the-record statement required before a criminal trial but verification that the patient was told of the right and understood the consequences of waiver is required, the court added, citing the Maryland Health-General article.

“Here, given the significant constitutionally protected liberty interest at stake where the forced administration of psychiatric medication is concerned, the high risk of erroneous deprivation of the interest under existing procedures, and the lack of an established burden on the state’s interest if additional safeguards were provided, we conclude that, at a minimum, verification that an individual wants to waive the right to request counsel under HG Section 10-708 is required and, further, such verification must demonstrate that the waiver is knowing and voluntary,” Judge Shirley M. Watts wrote for the court.

“Because an individual subject to forced medication under HG Section 10-708(b)(2) is necessarily hospitalized involuntarily or  committed for treatment by order of a court, determining that the waiver of the right to counsel is the product of the individual’s free will and that the individual has been advised of the nature of the right and the consequences of waiving the right is paramount,” Watts added.

The high court rendered its decision in holding that Jason Mercer, a patient at the Thomas B. Finan Center in Cumberland, was deprived his right to counsel by an administrative law judge who declined to postpone Mercer’s hearing after he requested an attorney.

In denying the request, the judge noted that Mercer had consulted with his rights adviser at the center before checking a box on the hearing request form that stated, “I hereby decline legal representation and will appear on my own behalf.”

But the Court of Appeals said the form provided an invalid waiver because it did not “advise Mercer of the benefits of having an attorney at the hearing, such that an attorney could assist by calling witnesses, cross-examining witnesses, and presenting his case.” The form also did not state the waiver was a voluntary decision, Watts wrote in the high court’s 5-2 decision.

Watts was joined in the opinion by Chief Judge Joseph M. Getty and Judges Michele D. Hotten, Jonathan Biran and Glenn T. Harrell Jr., a retired jurist sitting by special assignment.

Judges Brynja M. Booth and Robert N. McDonald dissented, saying the court should have deferred to the administrative law judge’s conclusion that Mercer’s waiver was knowing and voluntary in light of the patient’s discussion with the rights adviser and that a belatedly requested postponement of the hearing was unnecessary.

“Thus, it may well be that, in a particular case, the verbiage on a form is less important than the patient’s discussion with the lay adviser, who is knowledgeable about the mental health law and patient rights,” McDonald wrote in a dissent joined by Booth. “When the (patient’s) change of mind occurs on the day of the hearing, it seems that the ALJ, who can hear directly from the patient and can consult with the lay adviser, is in the best position to assess whether the patient should be bound by the declination of counsel on the form.”

Booth, in a dissent McDonald joined, wrote that the high court “should not substitute our judgment for the judgment of the ALJ” in this case.

Mercer’s appellate attorney, Miriam Sincell of Maryland Legal Aid, praised the court for finding that providing patients with legal counsel “is a due process right, not just a discretionary decision for postponing a hearing.”

“We are talking about vulnerable people,” Sincell said of those facing forced medication. “It (the right to counsel) is important because this is an adversarial process before the administrative law judge.”

The Maryland Attorney General’s Office, which represented the state-run medical facility, said in a statement Tuesday that “we are studying the court’s opinion and advising the Department (of Health) about ways to comply with it.”

Mercer’s refusal to take prescribed psychotropic medication for schizophrenia and his resulting lost appetite and disruptive behavior toward other patients and staff prompted the center to convene a three-member clinical review panel, which concluded on Aug. 5, 2019, that he should be forcibly medicated for 90 days, according to court papers.

Mercer was given 48 hours to request an administrative hearing, which he did. The hearing request form contained options for requesting or waiving counsel, the latter of which Mercer checked after speaking with adviser Lisa Olinger.

But on the day of the hearing – Aug. 16, 2019 – Mercer told the ALJ he wanted a lawyer, saying, “I think I have a right to that under the Constitution.”

The ALJ rejected the request.

“I do not find good cause to postpone this hearing in order for you to have counsel when you so clearly identified to Ms. Olinger not only verbally but on the form that you declined legal counsel,” the judge said. “And I do not find good cause to postpone this hearing in light of the statements made by (the center’s) counsel that you continue to represent a danger to yourself and others.”

Mercer represented himself at the hearing and concluded by stating that forcible medication is “torture, which is prohibited by the Eighth Amendment protection against cruel and unusual punishment.”

The judge, however, found that the center had shown by a preponderance of the evidence that Mercer should be forcibly medicated.

The judge’s decision was upheld by the Allegany County Circuit Court and the Court of Special Appeals, prompting Mercer – who was represented by counsel in his appeals – to seek review by the high court.

The Court of Appeals ruled in his favor in Jason Mercer v. Thomas B. Finan Center, No. 9, September Term 2021.