On Remand from the Supreme Court July 2, 1982.
Seitz, Chief Judge, and Aldisert, Adams, Gibbons, Hunter, Weis, Garth, Higginbotham, Sloviter, Becker, Circuit Judges. Adams, Circuit Judge, concurring in the result. Becker, Circuit Judge, joins in this concurrence. Seitz, Chief Judge, concurring. Weis, Circuit Judge, concurring, with whom A. Leon Higginbotham, Jr. and Sloviter, Circuit Judges, join. Gibbons, Circuit Judge, dissenting.
Opinion ANNOUNCING THE JUDGMENT OF THE COURT
GARTH, Circuit Judge, with whom ALDISERT and JAMES HUNTER, III, Circuit Judges, join:
John Rennie, the plaintiff in this matter, has been a patient at the Ancora Psychiatric Hospital, a state institution in New Jersey, on numerous occasions since 1973. It was during his twelfth hospitalization, after an involuntary commitment proceeding, that Rennie instituted the suit which gave rise to these proceedings.*fn1 The issue presented in this appeal involves the constitutional right of involuntarily committed mentally ill patients to refuse antipsychotic drugs administered against their will.*fn2 The district court recognized a constitutional right to refuse treatment. Rennie v. Klein, 462 F. Supp. 1131 (D.N.J.1978) and 476 F. Supp. 1294 (D.N.J.1979). In doing so, however, the district court framed an injunction in which it embodied those requirements which the court deemed necessary to protect the liberty interest of involuntarily committed mental patients who refuse antipsychotic medication. Both parties appealed from the district court's order granting a preliminary injunction.
On appeal, this court sitting in banc agreed that there existed a constitutional right to refuse treatment. Rennie v. Klein, 653 F.2d 836 (3d Cir.1981) (in banc). Our opinion, while recognizing that "the patient has a constitutional right to be free from treatment that poses substantial risks to his well-being," id. at 844-45, also included in its constitutional standard a "least intrusive means" analysis. See 653 F.2d at 845-47. Thus, the in banc majority affirmed the district court's analysis, see 462 F. Supp. at 1145-48, but then rejected the injunction imposed by that court and modified that injunction to incorporate the provisions of New Jersey's Administrative Bulletin 78-3, which was found to satisfy due process. 653 F.2d at 851.
At about the same time that the Rennie proceedings were taking place, we were also called upon to determine the constitutional standards which governed the case of a mentally retarded patient who claimed the right to be free from undue bodily restraint, the right to personal security, the right to protection from attacks by other inmates, and the right to adequate treatment. Romeo v. Youngberg, 644 F.2d 147 (3d Cir.1980) (in banc). Romeo involved a section 1983 action for damages in which the plaintiff claimed that as a mentally retarded inmate of Pennhurst, a state institution, his constitutional rights had been violated when he suffered, among other things, attacks on his person and physical restraints. Convening in banc, we found a Fourteenth Amendment liberty interest in freedom of movement, in personal security, and in habilitation, 644 F.2d at 164-69, but we did not agree on the relevant standard to be used in determining whether plaintiff Romeo's rights had been violated.
The Supreme Court vacated the in banc majority judgment in Romeo, and adopted the standard announced by Chief Judge Seitz in his Romeo concurrence. Youngberg v. Romeo, 457 U.S. 307, 102 S. Ct. 2452, 73 L. Ed. 2d 28 (1982). The Supreme Court held that the standard for determining damage recovery for mentally retarded patients against doctors and other professionals turns on whether "the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment." Id. at 323, 102 S. Ct. at 2462 (footnote omitted). The Supreme Court thus declined to adopt a "least intrusive means" analysis, and remanded both Rennie, 458 U.S. 1119, 102 S. Ct. 3506, 73 L. Ed. 2d 1381 (1982) and Rogers v. Okin, 634 F.2d 650 (1st Cir. 1980), cert. granted, 451 U.S. 906, 101 S. Ct. 1972, 68 L. Ed. 2d 293 (1981), vacated and remanded sub nom. Mills v. Rogers, 457 U.S. 291, 73 L. Ed. 2d 16, 102 S. Ct. 2442 (1982) to their respective courts. Mills involved the same issue as Rennie, namely, the constitutionality of the forcible administration of antipsychotic drugs to involuntarily committed mental patients. Rennie was remanded specifically for reconsideration in light of the Supreme Court's opinion in Youngberg.*fn3
It is against the backdrop of both our Romeo and Rennie in banc decisions and the Supreme Court's opinion in Youngberg v. Romeo that we have been called upon to reconsider our judgment in Rennie v. Klein, 653 F.2d 836 (3d Cir.1981). Having re-examined that opinion and judgment, I believe that the Supreme Court's decision in Youngberg does not require any change in the judgment which accompanied our earlier opinion, even though the analysis leading to that judgment does require amendment. The Supreme Court in Youngberg did not refer to a "least intrusive means" analysis.*fn4 Thus, if we are to reconsider Rennie in light of the Supreme Court's teaching in Youngberg, we cannot employ the concept of "least intrusive means." In New Jersey, the standard by which Rennie, as a mentally ill patient who has been committed involuntarily to a state institution, see State v. Krol, 68 N.J. 236, 344 A.2d 289 (1975), must have his constitutional right to refuse antipsychotic drugs measured, is whether the patient constitutes a danger to himself or to others.*fn5 Because that evaluation must be the product of the medical authorities' professional judgment, such a judgment and the resulting decision to administer medication will be presumed valid unless it is shown to be a "substantial departure from accepted professional judgment, practice or standards." Youngberg, 457 U.S. at 323, 102 S. Ct. at 2462. One of the factors to be considered in the exercise of professional judgment -- albeit not a controlling or necessarily determinative factor -- is whether and to what extent the patient will suffer harmful side effects. I believe that the professional judgment standard established by the Supreme Court in Youngberg sets the limits within which this factor must be assessed.*fn6
Because the record here is limited to a representative and a class of involuntary committees I, in turn, would restrict the holding in this case to only those mentally ill patients who constitute a danger to themselves or to others.*fn7 Thus, I would hold only that antipsychotic drugs may be constitutionally administered to an involuntarily committed mentally ill patient whenever, in the exercise of professional judgment, such an action is deemed necessary to prevent the patient from endangering himself or others. Once that determination is made, professional judgment must also be exercised in the resulting decision to administer medication.*fn8
The elimination of the concept of "least intrusive means" from this analysis does not, however, require that any change be made in the decree portion of our in banc opinion, which held that New Jersey procedures were adequate in implementing the rights of the mentally ill. Our earlier judgment, even though incorrectly predicated on a "least intrusive means" analysis, properly determined that New Jersey's regulations afforded sufficient due process protections with respect to forcibly medicating the mentally ill without the need for interposing external judicial requirements.*fn9 By focusing on professional judgment, the exercise of which would include the considerations I have discussed, it is obvious that the New Jersey procedures provided in Administrative Bulletin 78-3 satisfy the due process requirements adopted by the Supreme Court in Youngberg. Thus, I would affirm our previous judgment but I would do so without reliance on any "least restrictive means" standard.
I am aware that intervening events have occurred since the district court entered its judgment.*fn10 I am also aware that the district court's order that we modified involved not a permanent, but a preliminary, injunction. Recognizing these circumstances, I would remand to the district court for further proceedings consistent with the principles discussed in both the Supreme Court's Youngberg v. Romeo decision and the foregoing opinion in support of the judgment that I would affirm today.
ADAMS, Circuit Judge, concurring in the result.
I have no doubt that the New Jersey regulations found in Administrative Bulletin 78-3 satisfy the due process requirements of the Constitution. I also agree that today's decision is controlled by Youngberg v. Romeo, 457 U.S. 307, 102 S. Ct. 2452, 73 L. Ed. 2d 28 (1982), rev'g Romeo v. Youngberg, 644 F.2d 147 (3d Cir.1981) (in banc). I cannot, however, join in the limited professional judgment standard articulated by Judge Garth and, as the author of the least intrusive means standard enunciated in Romeo, I believe it is incumbent upon me to write separately.
The issue before this Court continues to be the definition of the constitutional rights afforded the mentally ill and mentally retarded who are involuntarily institutionalized. In Romeo, we reversed the district court's holding that the only substantive restraints upon the states in this context were found in the Eighth Amendment's prohibition of cruel and unusual punishment. We found instead that involuntarily institutionalized persons retain liberty and due process interests in minimally adequate care and treatment. This declaration of constitutional rights was specifically affirmed by the Supreme Court. Youngberg, supra, 457 U.S. at 318-19, 102 S. Ct. at 2459-60. The Supreme Court, however, rejected the use of the least intrusive means test and endorsed the standard articulated by Chief Judge Seitz:
The Constitution only requires that the courts make certain that professional judgment in fact was exercised. It is not appropriate for the courts to specify which of several ...