Constitutional Law – State Authorization Of
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+(,121/,1( Citation: Catherine L. Falvey, Constitutional Law - State Authorization of Forcible Administration of Depo-Provera Invalid under Colorado Statutory Law, 13 J. HEALTH & BIOMEDICAL L. 171 (2017). Provided by: Moakley Law Library at Suffolk University Law School Content downloaded/printed from HeinOnline Sat Jul 6 20:24:51 2019 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at https://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: Copyright Information Use QR Code reader to send PDF to your smartphone or tablet device 171 Journal of Health & Biomedical Law, XIII (2017) 171-183 ©20 17 Journal of Health & Biomedical Law Suffolk University Law School Constitutional Law-State Authorization of Forcible Administration of Depo-Provera Invalid Under Colorado Statutory Law-People ex rel. C.J.R. No. 16CA0915, 2016 Colo. App. LEXIS 1276 (Colo. Ct. App. Sept. 8, 2016). Catherine L. Falvey* Colorado law gives the court responsible for admitting a patient into a state facility the authority to involuntarily administer medication if that patient refuses to accept it.' The Colorado Court of Appeals in People ex rel. C.J.R2 addresses the Denver Probate Court's authorization of chemical castration by means of involuntarily administering Depo-Provera to a male patient exhibiting inappropriate and aggressive sexual behavior. The appeals court held that the probate court could not authorize the state facility to forcibly administer Depo-Provera to the patient, reversing the probate court's initial ruling.' *J.D. Candidate, Suffolk University Law School, 2018; Elon University, 2015. Ms. Falvey may be contacted at [email protected]. 1 See COLO. REV. STAT. § 27-65-111(5)(a) (2016). The court has the authority to accept a petition by a treating physician and to enter an order that the patient must accept treatment and if they do not, that the treatment be forcibly administered to that patient. Id. 2 People ex rel. C.J.R., No. 16CA0915, 2016 Colo. App. LEXIS 1276 (Colo. Ct. App. Sept. 8, 2016). Id. at *1. While physicians are statutorily permitted to administer medication against a patient's will, that medication must be for psychiatric treatment of the mental illness the patient is suffering from. Id. at *11-*12. 172 JOURNAL OF HEALTH & BIOMEDICAL LAW VOL. XIII ISSUE 1 C.J.R., a sixty-five year old man, is a long-term patient at the Colorado Mental Health Institute at Fort Logan, where he was treated for a form of psychosis identified as schizoaffective disorder.4 C.J.R. regularly engaged in sexually inappropriate behavior but would typically comply when asked to stop.5 The treating physician prescribed Clozaril, an antipsychotic medication, but after C.J.R. suffered a grand mal seizure doctors decided to cease this particular treatment.6 After cessation of Clozaril, C.J.R.'s inappropriate behavior worsened, at which time his psychiatrist prescribed Depo- Provera.7 C.J.R. refused voluntary treatment with injectable Depo-Provera.A Depo- Provera is a female contraceptive that has been used to decrease sexually aggressive and predatory behavior in males.' The facility sought authorization from the Denver 4 Id. at *2. C.J.R.'s illness causes him to have hallucinations about dead babies and to believe that his food and medications are contaminated. Id. Schizoaffective disorder may often manifest itself as "disorganized, thought patterns and speech., and behavior." Id. SCJ.R, 2016 Colo. App. LEXIS 1276, at *2. C.J.R. masturbated in front of staff and emerged naked from his room into the main ward where other patients were. Id. 6 See id. at *2-3 (explaining doctors' concern that Clozaril was causing seizures). After doctors discontinued Clozaril, they continued treatment with other antipsychotics. Id. at *3. 7 People ex rel. C.J.R at *3. C.J.R. began soliciting staff members for sex, grabbed a female nurse near her breasts and genitals, and became violent and aggressive. Idat *2. The psychiatrist chose to prescribe Depo-Provera, an injectable female contraceptive, because it has been shown to decrease libido, in an effort to decrease C.J.R.'s sexual urges. Id. at *4. Depo-Provera has sometimes been used in males to reduce sexually inappropriate behavior by using the hormone progesterone to decrease testosterone, through a process that is called chemical castration. Id. FDA has not approved Depo-Provera for chemical castration but once a drug is FDA approved for any use, it can be prescribed for another purpose at the licensed prescribing physician's discretion. People ex rel. CJ.R at *4-*5. Depo-Provera has been used in males to prevent the hypersexual behavior that C.J.R. has demonstrated. Id. at *4. 8 Id at *4. See COLO. REV. STAT. § 27-65-111(5)(a)(2010) (explaining the statutory authority for physicians to administer medication without consent of patient). 9 People ex rel. CJ.R at *4. Depo-Provera's primary ingredient is the synthetic hormone medroxyprogesterone acetate. Ambrosini v. Labarraque, 101 F.3d 129, 131 (D.C. Cir. 1996) (describing chemical composition of Depo-Provera); Walter J. Meyer III, M.D. et al., Depo Provera Treatmentfor Sex Offending Behavior: An Evaluation of Outcome, 20 J. Am. ACAD. PSYCHIATRY & LAW ONLINE 249 (1992) (providing further explanation of medroxyprogesterone acetate and use in reducing sex drive). This medication has been used to reduce recidivism rates and found that MPA treatment was effective in preventing the behavior it is aimed at. Id. at 257. 2017 JOURNAL OF HEALTH & BIOMEDICAL LAW 173 Probate Court to administer the drug intravenously to C.J.R. without his consent.10 The Probate Court granted the request." In deciding this case, the Colorado Court of Appeals relied on legislation from the General Assembly to reverse the probate court's order to administer Depo-Provera involuntarily to C.J.R. 12 The dissent contended that C.J.R. was dangerous because of his mental illness. 3 Judge Bernard opined that the moral imperative of protecting the employees and other patients in the ward outweighs the need to protect C.J.R.'s rights against forcible administration of Depo-Provera. 14 Colorado law authorizes the court of the jurisdiction in which the treating facility of a patient is located to accept petitions by treating physicians to impose Assembly of Colorado also provides guidelines for the treatment of people with mental illnesses." People ex rel. CJ.R. is unique and does not fit perfectly into the guidelines 1o C.J.R, 2016 Colo. App. LEXIS 1276, at *1-*2 (petitioning Court to allow administration of Depo-Provera to chemically castrate C.J.R.). 1 Id. at *5. The court used People t. Medina which produced a four part test to determine the authority to forcibly administer medication. Id at *6. This four part test requires the person requesting to involuntarily administer medication to prove by clear and convincing evidence that: (1) the patient is incompetent to effectively participate in the treatment decision; (2) treatment by antipsychotic medication is necessary to prevent a significant and likely long-term deterioration in the patient's mental condition or to prevent the likelihood of the patient causing serious harm to himself or others in the institution; (3) a less intrusive treatment alternative is not available; and (4) the patient's need for treatment by antipsychotic medication is sufficiently compelling to override any bona fide and legitimate interest of the patient in refusing treatment. People v. Medina, 705 P.2d 961, 963-964 (Colo. 1985). 12 CJ.R, 2016 Colo. App. LEXIS 1276, at *13-*14 (holding that the forcible administration order must be reversed). 13 Id. at *26 (Bernard, J., dissenting). 14 Id. at *26 (noting the strong moral reasoning behind protecting general population of the ward). 2 1s COLO. REV. STAT. § 7-65-101(1)(a)-(g) (2016). Section (a) of the statute aims to give treatment suited to the needs of the patient in a humane way with respect to the patient's dignity and personal integrity. Id. at § 27-65-101(1)(a). This statute indicates that its provisions may be liberally construed. Id. at § 27-65-101(2). 174 JOURNAL OF HEALTH & BIOMEDICAL LAW VOL. XIII ISSUE 1 provided by case law and statutes.16 One aspect of C.J.R.'s case that makes it unique is that he was civilly committed and not criminally incarcerated.17 Medina utilized a four-factor test to determine whether a physician could treat a patient against their will." First, the court asks if the patient is not competent enough to make a decision about their treatment on their own. 9 Second, the court must make a 16 See Medina, 705 P.2d at 963 (explaining that the central issue is nonconsensual treatment with antipsychotics). Medina does not address nonconsensual treatment with antiandrogens like Depo-Provera. Id. 1 People ex rel. CJ.R. at *2. In one Iowa case, the State Supreme Court affirmed a judgment based on the holding that there exists a rational basis for distinguishing between mentally ill sex offenders and other people with mental illness. State v. Williams, 628 N.W.2d 447 (Iowa 2001) (citing Iowa statute distinguishing these two types of individuals). The Iowa Code outlines procedure for the commitment of mentally ill people under chapter 229 and outlines the commitment guidelines for sexually violent predators under chapter 229A. IOWA CODE ¶ 229 (2016); IOWA CODE § 229A (2016). The Iowa Constitution guarantees equal protection to all citizens of the state, requiring all similarly situated people to be treated the same.