Mercer v. Thomas B. Finan Center: Cuckoo’s Nest Redux?
The Court of Special Appeals reported decision in Mercer v. Thomas B. Finan Center, September Term, 2019, No. 1398 (Md. App. decided Jan. 28, 2021) (“Mercer”), addressed procedural requirements applicable in the context of the administration of antipsychotic drugs against a patient’s will. More particularly, the issue was whether an institutionalized mental health patient was denied procedural due process, when, at the start of an administrative hearing regarding the involuntary administration of antipsychotic drugs, the administrative law judge (“ALJ”) declined to conduct an on-the-record colloquy to confirm that the patient had knowingly and voluntarily waived his statutory right to counsel.
Mr. Mercer Is?
Appellant Jason Mercer (“Mr. Mercer”) is a mental health patient involuntarily confined to the Thomas B. Finan Center (“Center”), a psychiatric facility run by the Maryland Department of Mental Health. The Center decided to administer antipsychotic medication to Mr. Mercer against his will. Within 48 hours after the Center notified Mr. Mercer of its decision, he appealed the decision, pursuant to Md. Code Ann., Health-General § 10-708, which governs procedures and grounds for approving the forced administration of antipsychotic drugs.
Prior to the hearing, Mr. Mercer had been suffering from increased paranoia because of his refusal to take medication. The refusal was followed by delusions, to which was attributed his refusal of food and water, resulting in a 25 pound weight loss and continuous dehydration. The facts in the opinion of the Court of Special Appeals do not disclose whether there was a specific determination that the delusions were the result of Mr. Mercer’s refusal to take medication, although that seems probable. The character and content of the delusions, however, is not described. The court also does not indicate whether there had been any medical finding that Mr. Mercer’s refused to eat or drink was because of the delusions or, possibly, because of some objection by him to his treatment at the Center, including, particularly any knowledge by him of a proposal to medicate him or concerns that his food and water could contain medication, hardly a delusion under the circumstances.
Similarly, although the court further states that Mr. Mercer had become distrustful of his own physician and began refusing to engage in therapy sessions, the court’s opinion does not indicate whether there had been a medical determination that lack of medication or delusions had caused this behavior, as opposed to some other reason Mr. Mercer expressed, such as his very objection to being medicated, including knowledge by him of any proposal forcibly to medicate him. Likewise, although the court states that Mr. Mercer “interfered with other patients’ treatment plans and triggered distressed behavior in other patients by holding his own group therapy sessions and encouraging the other patients to refuse treatment,” it cannot be ascertained from the court’s opinion whether Mr. Mercer’s conduct was the product of aberrational thinking or because Mr. Mercer had some reasonable objection to the way not just he but also other patients were being treated. Indeed, the specifics of how Mr. Mercer “interfered” are not described. Nor is the “distressed behavior in other patients” specifically described, and his reasons for encouraging other patients to refuse treatment are not given, such as whether he believed the Center’s therapists were really vicious aliens or whether, just to make the point here, he opposed the lobotomies that the Center was, in fact, encouraging.
Finally, nowhere in the opinion of the Court of Special Appeals is there any information that Mr. Mercer had engaged in or expressly threatened injurious or violent behavior toward himself or any other patient. To be sure, in a footnote, the court notes, randomly and arguably gratuitously, that prior to the administrative hearing and while it was pending, Mr. Mercer “ripped up a floorboard and hid it in his room.” The court notes only this. The innuendo, of course, is that Mr. Mercer intended to do violence with the floorboard. There is nothing beyond what the court states to suggest that Mr. Mercer had expressed or formulated some plan to do injury to himself or others. Whether it had been determined that Mr. Mercer did not have some sort of nonviolent or, for that matter, harmlessly delusional reason for taking and hiding the floorboard is also not stated. But for a careful reading of the court’s rendition of the facts, the picture of Mr. Mercer that rendition suggests is of a person primarily motivated by malicious, bad faith and ulterior motives, irrational thinking and poor judgment. In short, the court’s rendition of the facts, unintended as it very possibly is, eerily brings to mind the study in contrasts of perception that are Ken Kesey’s novel, One Flew Over the Cuckoo’s Nest, and the movie based upon it.
The Proceedings Below
The same day that the Center notified Mr. Mercer of its decision forcibly to medicate him, his lay advisor provided to him, in accordance with Section 10-708, a form used to inform patients of their right to appeal the Center’s decision to an administrative law judge (“ALJ”) and their right to legal or non-legal representation for the appeal (including free or personally paid legal representation). He declined an appeal at that time, but two days later, within the time limit that Section 10-708 sets, he told his lay advisor he wanted to appeal. Why he changed his mind was apparently not ascertained or, perhaps instead, not recorded, but, in any case, the opinion of the Court of Special Appeals contains no explanation.
When he requested an appeal, Mr. Mercer also expressly and in writing stated he did not want legal representation. Section 10-708 does not require that the patient’s lay advisor explain to the patient the advantages of legal representation or the risks of forgoing it. Nor, importantly, does it require the patient to be advised that if legal representation is declined, the patient may not be able thereafter to request legal representation prior to the administrative hearing. The opinion of the Court of Appeals does not state or suggest that Mr. Mercer was nevertheless aware of the advantages of legal representation and the risks of lay representation or aware that his declination of legal representation could preclude his ability to change his mind prior to the hearing.
At the start of the administrative hearing, Mr. Mercer stated that he desired an attorney. He told the ALJ that he did not remember signing the form with which he requested a hearing and in which he declined legal representation but did not deny that it was his signature on the form. He also, in the court’s words, “claimed” that he did not understand the form because he did not have legal counsel when he filled out the form. There is no support in the court’s opinion for its suggestion that Mr. Mercer was acting in bad faith.
In light of Mr. Mercer’s request for counsel, the ALJ requested the presence of Mr. Mercer’s lay advisor and determined from the advisor that Mr. Mercer had, in fact, declined legal representation. There is no indication in the court’s opinion whether the ALJ inquired if the advisor had ever told Mr. Mercer the advantages of legal representation, had told him the risks of lay representation, or told him that he might not be able to change his mind if he declined such representation. The Center argued, according to the court, “that postponing the administrative hearing to allow Mercer to obtain representation would place both Mercer and the other patients at a continued risk.” The degree, nature and specifics of this “risk” are not stated, if they were ever specifically determined.
The ALJ noted that Mr. Mercer “had a whole lot of time” between submitting the hearing request form and the start of the hearing. Ultimately, the ALJ, treating the matter as a request to postpone the hearing, instead of a request for counsel, determined that there was no good cause to postpone proceedings to permit Mr. Mercer to obtain counsel. Before making that determination, the ALJ did not conduct any colloquy with Mr. Mercer to determine whether he had knowingly and voluntarily waived his right to counsel, other than merely to determine that the acts signifying waiver were Mr. Mercer’s acts. The ALJ apparently also did not make any findings to support a conclusion that, at the time of the hearing, Mr. Mercer was sufficiently oriented as to time, place and circumstances. At least, the court’s opinion contains no indication that the ALJ sought to make such findings or specifically reached such a conclusion. Likewise, the ALJ apparently did not make any determinations as to what significant delay, significant risk or significant inconveniences, if any, securing counsel for Mr. Mercer would entail, or, at least, the court’s opinion contains no indication that the ALJ considered these matters. Nor is there to be seen in the court’s opinion any indication that the ALJ balanced the right to counsel against the cost and inconvenience of postponement, if at all significant, the assessment of which is also nowhere to be seen.
The Issues and the Court’s Decision
The Court of Special Appeals stated the questions that Mr. Mercer presented on review as:
Whether the ALJ erred or abused her discretion in treating Mercer’s request for the assistance of counsel as a request for a postponement and denying the request for want of good cause.
Whether the ALJ deprived Mercer of procedural due process by not conducting an on-the-record colloquy to determine whether he had [knowingly and voluntarily] waived his right to request representation.
Addressing these issues, the court first acknowledged that “[a] person has a constitutionally protected interest in ‘avoiding the unwanted administration of antipsychotic drugs,’” citing Allmond v. Dep’t of Health & Mental Hygiene, 448 Md. 502, 610, 141 A.3d 67 (2016) (quoting Washington v. Harper, 494 U.S. 210, 221 (1990)). Indeed, the Court of Appeals recently observed that “[i]t is a matter of the utmost seriousness when the State seeks to administer psychiatric medication to a citizen against his or her will. Slip Op. at 49, Johnson v. Dep’t of Health, September Term, 2019, No. 71 (Md. decided Aug. 24, 2020). It should go without saying that rendering a person a prisoner of his own mind can be as experientially confining as any prison sentence.
Section 10-708 specifies that the mental facility panel considering the forced administration of medication prepare a “written decision” containing its determination and reasons and provide a copy of the decision to the patient and his lay advisor. Further, “[i]f a panel approves the administration of medication, the decision shall contain” notice of “the right to request a hearing” before an ALJ and “[t]he right to request representation or assistance of a lawyer or other advocate of the individual’s choice.” Inexplicably, nevertheless, a bold caption in the court’s opinion states that Section “10-708 does not create a statutory right to counsel.”
The text of the court’s decision does clarify that its caption means that a patient’s statutory right to counsel is not absolute, in the sense that it is not waivable. The patient’s right is waivable of course. Not even in Gideon v. Wainright, 373 U.S. 355 (1963), the vaunted decision holding defendants had a constitutional right to counsel in state criminal proceedings, did the Supreme Court mean that counsel was required to be present at all important stages of such proceedings, regardless of the desires of a defendant. It is also clear, from the description of Mr. Mercer’s arguments before the court and the court’s own statement of the issues presented, that Mr. Mercer was not arguing only for such an absolute right. Instead, he also argued that, regardless of whether Mr. Mercer’s right categorically required the presence of counsel, the ALJ was required to conduct an inquiry to determine whether he had knowingly and voluntarily waived his right even to request counsel and have counsel appointed for him.
Mr. Mercer apparently did not raise, and the opinion of the Court of special appeals does not consider, whether Mr. Mercer also had a constitutional right to counsel under the Maryland Declaration of Rights or the United States Constitution. At the same time, however, the court neither states, nor does anything in its opinion suggest, that Mr. Mercer’s statutory right to counsel under Section 10-708 is more vulnerable to defeasance than a constitutional right to counsel. Indeed, Section 10-708 requires that the patient be told not just that he has a right to counsel but told so in writing and told that the state would pay for counsel, conditions aimed at avoiding an unwitting waiver. Presumably, therefore, and given the importance of the individual interest at stake, as stated in Johnson, the court would no less say of the statutory right under Section 10-708 than as the Court of Appeals once said of the constitutional right, “[t]he right to counsel has been zealously protected by the Supreme Court as a fundamental constitutional right. It is basic to our adversary system of criminal justice. Although it may be knowingly and voluntarily waived, the courts indulge every reasonable presumption against its waiver; acquiescence in the loss of such a right is never presumed.” Parren v. State, 309 Md. 260, 263, 523 A.2d 597, 598 (1986), citing Faretta v. California, 422 U.S. 806, 818 (1975), and Johnson v. Zerbst, 304 U.S. 458, 464 (1938). Although such statements occur most often in the criminal law context, surely the importance of the right to counsel is not more important where the defendant is faced with just a fine than where a patient is faced with being forced to take mood altering, if not severely mood disaffecting, medication.
Addressing the first issue before it, the Court of Special Appeals argues in its opinion that “[w]hen Mercer belatedly attempted to rescind his decision to decline the assistance of counsel, it was reasonable for the ALJ to interpret his request for counsel as a request for postponement.” Slip Op. at 15. “Belatedly” sought counsel is, of course, a question begging characterization of Mr. Mercer’s request. More importantly, with this sleight of reasoning, the court shifts the analytical context from the fundamental importance of the right to counsel and the protections judicially brigaded about it to the context of granting a postponement and the discretion generally given judges, including ALJs, to deny postponement of a proceeding for good cause. As to denials of counsel, however, unlike postponements, there is no discretion or such a thing as “good cause” for denial.
Mr. Mercer’s request originally was and remained a request for counsel, not a request for postponement. To be sure, that request might have resulted in the need for a postponement, the inconvenience and risk of which were, again, apparently never determined, let alone balanced against the risk of denying Mr. Mercer counsel. Moreover, there was no postponement necessary for the ALJ to conduct a colloquy with Mr. Mercer to determine whether his waiver was knowing and voluntary. The need for postponement would have arisen only if, after conducting the colloquy for which Mr. Mercer argued before the court, it were determined that the waiver was not knowing and voluntary. Indeed, the ALJ’s apparent prejudgment that a postponement would be required substantially suggests the sub silentio belief on the ALJ’s part that Mr. Mercer’s previous declination of counsel was not knowing and voluntary or no longer so.
Should there have been any surprise that this was the case, given Mr. Mercer’s indisputably compromised mental state? “Particularly where the patient is mentally disturbed, his own intentions will be difficult to assess and will be changeable in any event.” Harper, 494 U.S. at 231 (emphasis added). The principle that legal procedures protective of paramount personal interests are not irrevocably waivable was perhaps most strongly confirmed in Miranda v. Arizona, 384 U.S. 436 (1966), where the Supreme Court, addressing Fifth Amendment rights, ruled:
If [the individual] indicates in any manner and at any stage of the [criminal] process that he wishes to consult with an attorney before speaking, there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.
Id. at 444-45. The Court of Special Appeals does not address whether Mr. Mercer had the privilege and power to change his mind and rescind his waiver, undoubtedly because allowing this would entail delay (or exposed the fiction that the matter was one of right to postponement, not right to counsel). Again, however, neither the ALJ nor the court assayed what delay would be required, the nature and degree of the harms risked by delay and the degree of risk, let alone balanced these matters against the harms to Mr. Mercer. See Thanos v. State, 332 Md. 511, 525-28, 632 A.2d 768, 774-76 (1993) (holding that because defendant’s waiver of post-conviction remedies and rights was not irrevocable, statutory period providing 240 day stay of death warrant execution was not waivable by defendant).
It is clear that a mental health patient “possesses a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs under the Due Process Clause of the Fourteenth Amendment.” Harper, 494 U.S. at 221-22. For this reason, the Supreme Court was clear in Harper that a decision in mental health facilities concerning the involuntary administration of antipsychotic medication must provide procedural protections for patients but that it was not necessary that the decision, in the first instance, must be made in a judicial setting, instead of before a medical panel. That was and only was the holding in Harper. There was no holding, as the Court of Special Appeals states that, after the initial medical decision, a patient “did not have a due process right to counsel (as opposed to a lay advisor) at the hearing before the ALJ.” Slip Op. at 23. Harper dealt only with the procedures in a hospital or institutional setting. It did not at all address whether there would be a right to counsel where the proceedings involved were adversarial and before a judge or ALJ. Unlike in a judicial or administrative hearing setting, which involves matters of evidence admissibility or weight, presenting evidence, presenting and cross-examining testimonial evidence, legal argument and assuring the creation of an adequate record, such is not necessarily the case in less formal proceedings within mental health facilities.
Even accepting that whether there was “good cause” for denying a postponement was the appropriate construct for analysis, the decision of the Court of Special Appeals is vulnerable to question. The court merely argues, Slip Op. at 21, that because Mr. Mercer’s actions (“objective manifestations,” in the language of contracts law) were clearly to decline counsel, the ALJ had good cause per se to deny a postponement. Not true. Still required to justify denial is at least a qualitative, if not quantitative, assessment of the length of postponement actually required and balancing the actual risks of that particular postponement against the risks of denying Mr. Mercer counsel. The court’s reasoning simply slides past the importance of legal representation, particularly in a setting where the subject is cognitively or emotionally impaired or both.
After deciding that the ALJ had discretion to deny a postponement because the law did not categorically require that Mr. Mercer be represented by counsel at the administrative hearing and because Mr. Mercer had indisputably previously indisputably signified that he did not want counsel, the opinion of the Court of Special Appeals posits the next relevant question as whether declining to postpone the hearing to allow Mr. Mercer to retain counsel, nevertheless, deprived Mr. Mercer of procedural due process. The relevant question, however, was not whether declining a postponement denied due process but whether due process was denied when the ALJ failed to assess, by colloquy, the knowing and voluntary nature of Mr. Mercer’s pre-hearing statement that he did not want counsel.
Although the court eventually states that “the question in this case is whether due process requires the ALJ to conduct an on-the-record colloquy as an additional safeguard to ensure that a patient has knowingly and voluntarily declined to exercise the statutory right to request counsel,” Slip Op. at 23, what the court irrelevantly purports to assess, nevertheless, is whether a postponement to obtain counsel would have been burdensome and risky, not whether conducting a colloquy (to see whether Mr. Mercer’s alleged waiver was knowing and voluntary) would have been burdensome and risky. After this assessment, therefore, the court quite baselessly asserts that “[t]he State’s interest in ensuring that he and others are safe and that he and other patients are properly treated could be significantly burdened if the ALJ were required to conduct a waiver colloquy under the circumstances of this case.” Slip Op. at 26.
There is a plain distinction between “postponement” to conduct a colloquy on knowing and voluntary waiver of the right to retain counsel and a significant postponement to allow for the retaining of counsel. In obfuscating the issues, the court’s opinion manages to sidestep and allowed the ALJ to sidestep entirely whether Mr. Mercer’s pre-hearing statement constituted a voluntary and knowing refusal of counsel and, therefore, a valid waiver of counsel. The court’s decision, therefore, is tantamount to a ruling that even if Mr. Mercer’s first statement declining counsel were not knowing or voluntary, any postponement whatsoever to retain counsel was categorically prohibited. “The presumption that a man is sane applies to both criminal and civil matters … . Where the mental capacity of a person to waive his right to counsel is at issue, the presumption must be rebutted by facts adduced by preliminary examination or observation by the trial judge indicating that the [person] is incompetent to make an intelligent waiver.” McCloskey v. Director, Patuxent Institution, 245 Md. 497, 504, 226 A.2d 534, 539 (1967) (emphasis added).
Wherever and however the right to counsel is granted to a person whose will the state constrains, the requirements that its waiver be knowing and voluntary are like the grin of the Cheshire Cat; regardless of the form of the context in which the right arises, those protections should endure unchanged.
 The words “knowingly and voluntarily” have been inserted because shortly after stating the questions presented, the court, in its opinion, stated, “We also conclude that due process did not require the ALJ to conduct an on-the-record colloquy to confirm that Mercer had knowingly and voluntarily waived the right to counsel.” Slip Op. at 7 (emphasis added).
 The court cites as an example, Md. Code Ann., Cts. & Jud. Proc. § 3-813, which states that in a Child in Need of Assistance proceedings, “[a] child who is the subject of a CINA petition shall be represented by counsel[,]” at the State’s expense. That the right to counsel should not be waivable in this context makes much sense. The court’s opinion indicates that it also means that there is a difference between a right to paid counsel and a right to request paid counsel, the former being an unconditional right and the latter being a conditional right, with counsel being provided only if it is requested. The court, however, does not expressly discuss what this distinction entails in any respect, other than to suggest that these is something lesser about the right when one must ask for counsel, in order to receive legal representation. Telling, the court cites no case whatsoever that makes or explains such a distinction.
To be sure, in Miranda v. Arizona, 384 U.S. 436, 471 (1966), the Supreme Court, quoting its earlier decision in Carnley v. Cochran, 369 U. S. 506, 513 (1962), stated, “[I]t is settled that, where the assistance of counsel is a constitutional requisite, the right to be furnished counsel does not depend on a request.” Miranda required, however, that a person in custody be told not just that the person has a right to counsel but also that counsel may then be present and that the person may consult with that counsel, 384 U.S. at 471, warnings tantamount to the person being told counsel may there and then be requested. In other words, the protections would not depend on the person unilaterally then exercising the right of which the person had just been informed. The person was required to be told that he could then have counsel present and, not just present, but also counsel available to consult, that is to say, that the person would be informed that he could then request counsel. The person’s right would not be permitted to depend on knowing of that right or, even if knowing of that right, depend on the person having the presence of mind, though in police custody, to invoke what was already known. It is evident that the Maryland legislature accomplished the same and intended nothing less, because it required in Section 10-708 that a mental patient be told in writing and at the same time the patient requests a hearing not merely that the patient has a right to paid counsel but also that the patient may then request paid counsel. There is no warrant for reducing recognition of the right to counsel to a game of “Mother May I?”
 The court’s opinion effectively concedes this, reserving for another time consideration “whether Mr. Mercer could have rescinded his decision to proceed without counsel at some point earlier than he did.” Slip Op. at 20. The court’s thought to reserve the issue belies any suggestion that potential need for legal representation at the administrative hearing was not a matter of consequence. Instead, the court blows past that importance with the argument that “as Mercer waited to request counsel until just before the administrative hearing began, the ALJ could not have fulfilled his request without postponing the hearing.” Id. Again, as noted herein, whether denying postponement was justified required balancing the specific risks of the specific postponement that would have been required against the risks of denying Mr. Mercer counsel.
 Indeed, under Section 10-708, “[t]he administrative law judge shall conduct a de novo hearing to determine if the standards and procedures [for the involuntary administration of medication] are met.” (Emphasis added.) Given that Section 10-708 requires that a patient, at the medical panel stage of proceedings, be allowed to “present information, including witnesses [and, presumably, evidence]” and “[t]o ask questions of [including, presumably, cross examine] any person presenting information to the panel,” there is no doubt that the administrative hearing is not to be made on just, such as it may be, the record created before the panel.