Treatment Over Objection and the Right to Refuse Counsel

Facts of the Case

In January 2018, Jason Mercer, after being found not criminally responsible for a second-degree assault and unauthorized use of a motor vehicle, was committed to a Maryland state psychiatric hospital, the Thomas B. Finan Center. Schizoaffective disorder bipolar type was diagnosed and psychotropic medications were given for treatment. Initially, he took the prescribed medications and his condition improved. As a result, he was transferred to a less-restrictive unit of the facility. In July 2019, he began to refuse the appropriate doses of medications; he became paranoid that the food was processed, and stated he was uncertain about the contents of the water. He stopped eating and drinking. In the next few weeks, he lost 24 pounds and developed symptoms of dehydration. Mr. Mercer also stopped attending therapy sessions and instead held his own “therapeutic group” sessions where he urged other patients to reject their treatments. With Mr. Mercer’s guidance, another patient discontinued electroconvulsive therapy.

Pursuant to Md. Code Ann. Health-Gen. § 10–708, the state’s governing statute for administering psychotropic medications over the patient’s objection, the facility moved to medicate Mr. Mercer. Under this statute, in a nonemergency, individuals may be forcibly medicated when involuntarily hospitalized for treatment and the treatment over objection is approved by a clinical review panel. If the panel approves the treatment over objection, a written decision must advise patients of their right to request a hearing and their right to request representation at the hearing. Individuals must request the hearing within 48 hours of receiving the decision; there is no statutory deadline on the request for representation.

A clinical review panel convened on August 5, 2019. Mr. Mercer’s lay advisor provided him with a copy of the panel’s written decision approving treatment over objection and an appeal request form that advised him that he must request a hearing within 48 hours of receiving the panel’s decision. If he requested a hearing, it would be held within seven days of receipt of the notice. He could also request representation for the hearing by: using a designated legal assistance provider; obtaining his own private attorney; designating an alternate advocate; or proceeding pro se. He initially declined a hearing. Two days later, on August 7, Mr. Mercer requested a hearing and elected to proceed pro se. On August 13, he was informed a hearing had been scheduled for August 16.

On August 16, at the hearing before an administrative law judge (ALJ), Mr. Mercer requested an attorney and said he did not recall filling out or signing the appeal request form. The ALJ questioned his lay advisor who reported that she reviewed the form with Mr. Mercer and that he told her he had “no need for an attorney” (Mercer, p 1051). Mr. Mercer objected, saying that he did not understand but would have understood it if he had legal counsel available. The ALJ interpreted Mr. Mercer’s request for an attorney as a request for postponement and proceeded with the hearing. During the hearing, Mr. Mercer argued that being forcibly medicated constituted “torture” and was a violation of his Eighth Amendment rights against cruel and unusual punishment. The ALJ found, by a preponderance of the evidence, that Mr. Mercer presented a danger to himself because he was not eating or drinking, and a danger to others as a result of his interfering in treatment of other patients. The ALJ ruled to medicate Mr. Mercer.

On August 29, Mr. Mercer, on his own behalf, filed an appeal in the Circuit Court for Allegany County. On September 4, the circuit court met. Mr. Mercer had acquired representation by this time. The appellants argued the ALJ erred by “not taking testimony” on the record on the question of waiver of counsel and that the appeal request form provided an inadequate waiver. The court affirmed the ALJ’s ruling and said Mr. Mercer had the “right to representation afforded him by statute” (Mercer, p 1054) and that the form was permissible as an effective waiver of representation.

Mr. Mercer then appealed to the Maryland Court of Special Appeals. In January 2021, the court affirmed the circuit court’s judgment. The court interpreted the statute to confer a right to request representation, but not an automatic right to counsel “absent a timely request.” The court found that the ALJ did not deprive Mr. Mercer of procedural due process by not postponing the hearing to allow him to obtain counsel. The court reasoned that he did not have a statutory right to counsel, and that the government had an interest in ensuring all patients were provided with the mental health care they required. In March 2021, Mr. Mercer petitioned the Court of Appeals of Maryland, claiming that the court of special appeals erred in determining that the statute did not require an on-the-record assessment of his waiver of his statutory right to counsel. The court granted cert.

Ruling and Reasoning

The Maryland Court of Appeals found that the plain language of Md. Code Ann. Health-Gen. § 10–708 established that, at a hearing to appeal a clinical review panel’s decision, a patient had a right to request counsel. The court ruled that procedural due process required verification of the patient’s knowing and voluntary waiver of the right to request counsel, but an on-the-record colloquy is not required. In addition, the patient’s right to request counsel is not subject to a time limit.

The court was cognizant of the potential delays that having no time limit on requesting counsel could create. Patients, as a delaying tactic, could wait until the hearing before the ALJ before requesting counsel. Delays could place undue burden on the mental health system and potentially put the patient and others at risk of harm. On the other hand, the law clearly stated that Mr. Mercer had a right to request council.

To determine whether Mr. Mercer was erroneously deprived of procedural due process, the court turned to the balancing test provided in Mathews v. Eldridge, 424 U.S. 319 (1976). The court determined that, because the appeal request form was deficient and the administrative hearing took place beyond the seven days prescribed by law, Mr. Mercer had been erroneously deprived of procedural due process. The court suggested that the appeal request form could be redrafted to advise individuals of their right to request counsel and also include information on the consequences of declining counsel. Verification of the waiver could be accomplished through this modified appeals request form or an in-person procedure.