Opinion
No. SUCV-2006-2713B.
July 19, 2006. Memorandum Of Decision And Order On Petitioner's Motions For Preliminary And Permanent Injunctions Authorizing Involuntary Medical Treatment Of A Prisoner.
The petitioner, the Commissioner of Correction, seeks preliminary and permanent injunctions authorizing involuntary medical treatment of a prisoner. For the reasons outlined below, after an evidentiary hearing, the petitioner's motion for a preliminary injunction is ALLOWED, with certain modifications.
Findings of Fact
This factual overview is taken from the affidavits submitted by the petitioner from clinicians who have examined the respondent, including Marianne Smith, M.D. (a psychiatrist who provides psychiatric treatment to inmates in Massachusetts Department of Correction facilities), Philip Tavares, M.D. (a physician employed by the Department of Corrections), and Augustine Enaw, M.D. (a physician and Medical Director for the Souza-Baranowski Correctional Center), as well as testimony taken from Dr. Ennaw at an evidentiary hearing on July 17, 2006.
The respondent, Glenn Mortimer, is a mentally competent, 47 year old male inmate serving a sentence of 36 — 80 years on a conviction for Home Invasion, and lesser, concurrent sentences on conviction for Armed Burglary and Arson of a Dwelling. He is also facing a from and after sentence of 19 — 20 years on a conviction for Armed Assault with Intent to Murder. He is currently housed at the Souza-Baranowski Correctional Facility. He was committed to the Department of Correction (hereinafter, "Department") on June 14, 1995.
As a result of the commission of his crime, the respondent suffered second and third degree burns over 70% of his body and became blind. He has a medical history of hypertension (high blood pressure) and hyperlipidemia (high cholesterol).
On June 5, 2006, the respondent began a hunger strike in protest against issues relating to his care and custody and medical treatment at Baystate Correctional Center, where he was then housed, and to bring attention to his demand to arrange a meeting between Commissioner Kathleen Dennehy, Department of Corrections attorney Richard McFarland, State Senator Patricia Jehlen, the respondent's sister, Susan Mortimer, and the respondent to discuss his claimed violations of a settlement agreement with the Department of Corrections. On June 8, 2006, the respondent was transferred to the Souza-Baranowski Correctional Center in order to treat his hunger strike and better monitor his medical condition.
Since June 5, the respondent has taken ice and water, and has occasionally taken a can of Ensure, a nutritional supplement. He has eaten some meals within the last day or so. His present intake of food is insufficient to meet his nutritional needs. In 2004, the respondent weighed 170 lbs. On June 26, his weight was reported to be 137 lbs. Recently, Dr. Enaw documented his weight at 140 lbs. During the last week he has lost 5-1/2 lbs., and now weighs approximately 134-1/2 lbs.
The respondent, who is 6 feet tall, has lost muscle mass and strength, and has insufficient energy for daily life activities. Given his significant weight loss, there is a serious likelihood that, if he does not receive additional nourishment, he will deteriorate rapidly within the next 2 to 4 weeks, resulting in the collapse of his vital organs and possible death. He is also more vulnerable to developing an infection in his current, debilitated condition. Prior to beginning his hunger strike, the respondent was prescribed medications for his hypertension and hyperlipidemia. He has continued to take those medications voluntarily since the beginning of his hunger strike.
From the beginning of his hunger strike on June 5, the respondent refused to consistently allow medical staff to monitor his vital signs. He began to allow consistent monitoring just prior to June 26. Since June 27, he has voluntarily complied with a temporary order of this court (see below), permitting the Department, inter alia, to hydrate him and to monitor his vital signs. His vital signs are being monitored three times daily. Since July 5, the respondent has been orthostatic, that is, there are significant changes noted in his vital signs when he is standing up as opposed to when he is lying down. Orthostatic changes indicate a diminished cardiac output, meaning that the respondent's heart does not have enough power to send blood throughout his body. This creates a possible risk of stroke and heart attack. In addition, the respondent faces a risk of possible kidney failure. Because his vital signs are being monitored regularly, Department medical staff would likely be alerted to any of the serious risks — stroke, heart attack, kidney failure, infection due to his debilitated condition — should any of them occur, in time to implement palliative medical treatment. Nevertheless, he faces a significant risk of death within a relatively short period of time if he does not receive additional nourishment.
On June 27, this matter first came before the Court (Locke, J.) on the Department's ex parte Motion for a Temporary Restraining Order. The Department submitted supporting affidavits from Dr. Marianne Smith and Dr. Philip Tavares (see note 1). Judge Locke issued a two day order authorizing intravenous hydration, immediate blood tests, urinalysis and other necessary laboratory studies, taking of vital signs, subcutaneous or intravenous medication, and any and all other reasonable medical procedures necessary to evaluate and monitor the respondent's medical condition. He denied the Department's requests for the use of a nasogastric tube or a pertutaneous entero-gastric tube for nourishment, and for x-rays. Judge Locke also appointed counsel for the respondent.
On June 29, Judge Locke conducted a hearing on the Department's Motion for a Preliminary Injunction and continued the temporary order until July 13, for the provision of additional affidavits.
I held further hearings on July 13, with counsel for both parties present, and on July 17, with the respondent present as well. This Court also received an affidavit and testimony from Dr. Augustine Enaw.
The Department has renewed its request for the use of either a nasogastric tube or a pertutaneous entero-gastric tube for nourishment if medically necessary, in addition to the provisions authorized by the temporary order. These are both widely used, proven medical techniques. Although there are some slight risks associated with the use of these procedures, either type of nourishment system could be utilized with relatively minor discomfort to the respondent. If these procedures are authorized and the respondent does not cooperate, a soft, four-point restraint would be used that would not cause damage to the respondent's skin. In Dr. Enaw's opinion, the use of such a procedure to provide nourishment is necessary to prevent the inevitable risk of death, which may result as soon as 2 to 4 weeks from now if the respondent continues his hunger strike. The respondent opposes the use of the feeding tubes.
Temporary throat irritation may occur with use of the nasogastric tube. The pertutaneous entero-gastric tube requires local anesthesia and a small surgical incision for insertion, and a local infection at the implanted tube site could occur if antiseptic procedures are not followed.
Judge Locke's previous order, which remains in effect, authorized the use of reasonable force if necessary.
Rulings of Law
In Superintendent of Belchertown State School v. Saikewicz, 373 Mass 728 (1977), and Commissioner of Correction v. Myers, 379 Mass. 255 (1979), the Supreme Judicial Court articulated an analytical framework applicable to circumstances where an individual in state custody rejects potentially life-saving medical treatment, and held that the individual's interest in self-determination must be balanced against certain countervailing state interests. Those interests are:
1. Preservation of life;
2. Protection of the interests of innocent third parties;
3. Prevention of suicide; and
4. Maintenance of the ethical integrity of the medical profession.
Saikewicz, supra, at 741; Myers, supra, at 262.
All four of the interests identified in Saikewicz and Myers are implicated here. It is appropriate for this Court to consider, in balancing these interests, the degree to which Mortimer's condition is life-threatening, the magnitude of the proposed invasion of his bodily integrity, the reason(s) for Mortimer's hunger strike, and the state's interest in upholding orderly prison administration. Myers, supra at 262 — 265.
There can be no question that Mortimer's condition is life-threatening. Although the risk of death is not immediate, it is inevitable, and sufficiently imminent to cause grave concern for the facility's medical director, Dr. Enaw. Forcing the Department to wait until Mortimer's medical status deteriorates to the point of emergency before it can take further life-preserving measures would put the Department in an untenable and precarious situation. Should Mortimer continue to refuse food, his condition could decline so rapidly that it might not be possible to obtain emergency treatment in a sufficiently timely way to save his life.
The additional measures the Department seeks to implement, over and above those already in force pursuant to Judge Locke's original order, are the nasogastric or pertutaneous entero-gastric tube for nourishment. These procedures are well-known and widely-used medical techniques, are minimally invasive, and have low risks of complications associated with their use. A relatively minor degree of forcible restraint would be necessary only in the event that Mortimer failed to cooperate with the insertion of a tube.
The state's interests in maintaining institutional order and discipline, in the effective administration of the prison, and in preventing suicide are high and should be afforded great weight, particularly when balanced against Mortimer's use of the hunger strike to attempt to gain attention and leverage in his demands to meet with prison authorities and protest his treatment. Certainly, Mortimer has a right to bring his concerns to the attention of authorities [se, e.g.,Bell v. Wolfish, 441 U.S. 520, 545 — 547 (1979); Champagne v.Commissioner of Correction, 395 Mass. 382, 387 (1985)], but he does not have an unfettered right to do so by attempting to commit suicide. As other courts have noted in balancing individual and governmental interests, "correctional needs in a case such as this are urgent and ought to be given considerable weight, especially when the prisoner's refusal of life-saving treatment is predicated on an attempt to manipulate his placement within the prison system." Myers, supra at 264-265, quoting from Jones v. North Carolina Prisoner's Labor Union, Inc., 433 U.S. 119, 126, n. 4 (1977).
Based upon all of the circumstances, this Court concludes that the Department of Correction's interest in maintaining institutional security and preventing suicide outweighs the respondent Mortimer's rights to protest in a way that is disruptive to institutional security and to make his own determinations about his medical treatment.
Order
Based on the foregoing findings of fact and rulings of law, the Motion for Preliminary Injunction of the Commissioner of Correction is ALLOWED, as follows:
This Court takes no action with regard to the petitioner's Motion for a Permanent Injunction.
1. The Commissioner's designees, specifically including appropriate medical and correctional personnel at any Department of Correction facilities, are hereby authorized to take the following measures regarding respondent Glenn Mortimer:
a. intravenous hydration;
b. immediate blood tests, including finger sticks, blood draws and all other necessary and appropriate tests/studies;
c. urinalysis and other necessary laboratory studies;
d. taking of vital signs (blood pressure, pulse and temperature);
e. possible subcutaneous or intravenous medication; and
f. any and all other reasonable medical procedures necessary to evaluate and monitor his medical condition.
2. Should it be determined to be medically necessary by the Commissioner's designees, specifically, the medical director of any Department of Correction facility, the following measures are also hereby authorized:
a. use of a nasogastric tube for nourishment; or
b. use of a pertutaneous entero-gastric tube for nourishment.
3. Appropriate medical and security personnel may use whatever reasonable force is necessary, but only when necessary (including but not limited to soft four-point restraints), to accomplish these measures, should the respondent refuse any of them.
4. This matter will be marked for further hearing in ninety (90) days, on October 18th, 2006, at 2 p.m.