In re Rudy Terrazas (Jan. 11, 2022, E077170) __ Cal.App.5th __ [2022 WL 109008]

Before authorizing electroconvulsive therapy for an inmate who lacks capacity to consent, courts must consider treatment preferences the inmate expressed while still competent.

A prison warden sought court approval under the “Organic Therapy” statutes (Pen. Code, §§ 2670-2680) to perform electroconvulsive therapy (ECT) on inmate Rudy Terrazas to treat his worsening mental illness. The trial court authorized the ECT after making statutorily required findings that Terrazas lacked the capacity to consent to treatment; that the state proved by clear and convincing evidence that there was a compelling need to use ECT on Terrazas; that there were no less-onerous alternatives; and that ECT was a sound medical and psychiatric treatment.  (Id., § 2679.) Terrazas petitioned for writ relief. 

The Court of Appeal granted a writ of habeas corpus. The court began by rejecting Terrazas’s argument that the constitutional right to refuse medical treatment requires the appointment of a surrogate to consent to ECT for an inmate who is unable to consent. The court reasoned that the right to refuse medical treatment is limited by the state’s interest in providing care to citizens who cannot care for themselves under the doctrine of parens patriae. The state’s high burden under the Organic Therapy statutes restricts its parens patriae power by providing sufficient protection to an inmate who lacks capacity to consent to ECT. The court acknowledged that section 2677 allows inmates to request the appointment of an independent medical expert to review the medical evidence, but Terrazas waived that appointment by not disputing his mental illness.

Nevertheless, the court held that, to comply with the constitutional right to refuse medical treatment, courts must (before authorizing ECT) consider any expressed preferences and beliefs the inmate made when competent. The court explained that a person’s refusal to receive medical treatment while competent can preclude such treatment when the person becomes incapacitated. The court explained that the findings required under the Organic Therapy laws to overcome that lack of consent were insufficient to address this separate constitutional issue. The Court of Appeal directed the superior court to develop a record of the inmate’s beliefs and to decide in the first instance what “legitimate penological interests” might overcome a finding that the inmate did not consent to the therapy when competent.

The bulletin describing this appellate decision was originally prepared for the California Society for Healthcare Attorneys (CSHA) by H. Thomas Watson and Peder K. Batalden, Horvitz & Levy LLP, and is republished with permission.