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Court Clarifies Rogers Determination Standards

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In the case of Guardianship of C.A. (Mass. App. Ct. No. 21-P-1047, March 15, 2023), the Massachusetts Appeals Court provides an excellent explanation of the standards for Rogers decision making.

Rogers Treatment Plans

Under the case of Rogers v. Commissioner of Dep’t of Mental Health (390 Mass. 489, 1983), the Supreme Judicial Court ruled that antipsychotic medication may only be administered against the will of an individual if a court has determined that the individual requires the protection of guardianship and that if they were competent they would agree to the treatment plan. This is known as “substituted judgment” as opposed to a “best interest” standard in which the judge determines that the treatment is in the best interest of the patient.

The Rogers decision also lays out a detailed process for making substituted judgment decision which involves the appointment of counsel for the individual and a standard set of findings the judge must make.

C.A.’s Situation

The case of Guardianship of C.A. involves a 78-year-old woman who was diagnosed with paranoid schizophrenia. She had been living on her own and voluntarily taking Zyprexa to treat her illness. While the treatment was effective, C.A. denied she had a mental illness and was unwilling to take the medical tests necessary to monitor the side effects caused by the medication. Her psychiatrist believed that C.A. had “limited ability to fully participate in [an] informed consent decision discussion” and “[d]ifficulties manipulating the information to make an informed decision.”

After hearing, the probate court determined that C.A. required the appointment of a guardian for the limited purpose of making medical decisions and approved a treatment plan that included the administration of Zyprexa and of two alternative antipsychotic medications in the event the Zyprexa stopped being effective.

C.A. challenged this finding, arguing that (1) the judge used the wrong standard in determining that she needed guardianship, (2) the substituted judgment that she would consent to the treatment was wrong, and (3) the authorization of alternative forms of treatment was premature.

Standard for Guardianship

C.A. argued that the judge used the standard for capacity to execute a will rather than that laid out in the guardianship statute at M.G. L. c. 190B, § 5-101 (9). The Appeals Court disagrees, holding that while the probate court used terms such as “competency” and “capacity” in its decision, it the judge used the proper standard. It further finds that the psychiatrist’s testimony regarding C.A.’s refusal to do blood testing and her inability to fully participate in discussions about her treatment, as well as C.A.’s own testimony that she did not suffer from mental illness, satisfied the requirements of the guardianship statute.

Further, the Court holds that the fact that C.A. was able to live independently did not preclude the finding that she needed a guardian to make medical decisions. It cites the case of Guardianship of Roe (411 Mass. 666, 1992) to the effect that “a person [can] be competent to make some decisions, but not others.”

Substituted Judgment

In terms of the probate court’s substituted judgment that C.A. would take Zyprexa if competent to make a decision, the Appeals Court finds the fact that she had been taking the drug voluntarily for at least 12 years was strong evidence that she would take it if she had capacity to make the determination. The probate court’s also properly applied the other standards required for a Rogers determination, namely that it had made findings regarding “(1) a person’s expressed preferences; (2) h[er] religious convictions; (3) the impact on [her] family; (4) the probability of adverse side effects from treatment; (5) h[er] prognosis with treatment; and (6) h[er] prognosis without treatment.”

However, there’s the question of whether the whole guardianship and Rogers determination were necessary given that C.A. was voluntarily taking Zyprexa. The Appeals Court concludes that C.A.’s confusion about her own diagnosis meant that she was at risk of refusing necessary treatment in the future and that this risk permitted the appointment of a guardian and the prospective approval of a treatment plan.

From the evidence of C.A.’s apparent confusion about her medication, the judge could infer that C.A. was at risk of stopping Zyprexa, which would result in the decompensation that Dr. Czarnota-Dolliver predicted. The judge did not have to wait for those events to occur before appointing the Rogers guardian with authority to consent to treating C.A. with Zyprexa.

The Court also approves the treatment plan’s authorization of injections of Zyprexa should C.A., in the future, refuse to continue taking Zyprexa orally.

Prospective Approval of Alternative Medications

However, the Court vacates the portion of the treatment plan authorizing the use of alternative medications should Zyprexa become ineffective in controlling the symptoms of C.A.’s schizophrenia. The Department of Mental Health had argued that the authorization of alternative treatments was permitted under Probate and Family Court Standing Order 4-11 (1) (c) (2011). The Appeals Court disagrees, holding that the standing order only applies uncontested motions to extend existing Rogers treatment plans. In this case, since C.A. opposed the plan, the probate court was required to conduct the same substituted judgment analysis for the alternative medications that it did for Zyprexa. Since it did not, that portion of the treatment plan cannot stand.

This decision is an excellent summary of the law regarding Rogers determinations that clarifies standards both for making the determination that an individual requires as guardianship and for the substituted judgment approval of a treatment plan.

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