Originally published in January, 2018. Updated, January 2024.
There’s a lot to understand about Roger’s Orders, but the first point to know is that it started out as a protection from forced drugging, and not as a way to force people to accept treatment they wish to refuse. Read on to better understand the details.
There are two court decisions relevant to the Roger’s Order as we know it today. They are as follows:
The Guardianship of Roe, 421 N.E.2d 40 (Mass 1981): This ruling determined that guardians should not have the power to authorize forced psychiatric drugging for an individual. Instead, it determined that such decisions must be made by the courts using the principle of ‘substituted judgment.’ In coming to this decision, the court stated:
“We can identify few legitimate medical procedures which are more intrusive than the forcible injection of antipsychotic medication…Because of both the profound effect that these drugs have on the thought processes of an individual and the well-established likelihood of severe and irreversible adverse side effects…we treat these drugs in the same manner we would treat psychosurgery or electroconvulsive therapy.”
In other words, this decision made it clear that guardians were not empowered to make decisions of this sort, and that a higher threshold needed to be set based on the intrusive nature of the proposed action. Furthermore, this decision also indicated that a doctor was not in a position to make the final call on what action should be taken. Instead, doctors were only to be consulted to the same extent that the individual in question might themself seek medical advice in making their decision.
Rogers, 458 N.E. 2d 308 (Mass 1983): Next came the Rogers decision itself. This ruling was based on a class action lawsuit filed by Ruby Rogers and six other individuals who’d been forcibly secluded and drugged while inpatient on a psychiatric unit. At the time, going inpatient meant you were assumed ‘incompetent’ and gave up your rights to refuse treatment. (Ruby was chosen as the lead plaintiff based on the strength of her voice, as well as the fact that she suffered such force even though she went to the hospital voluntarily.) Ultimately, it was determined through this case that being hospitalized was not on its own justification for forced treatment of any kind, and that the courts needed to be involved to formulate a Substituted Judgement, as was determined in Roe.
Interestingly, although the Rogers case was entirely about treatment in locked psychiatric units, it now has huge implications for treatment related to psychiatric drugs (specifically what are known as ’antipsychotics’) in community.
Two Types of Rogers Orders:
There are actually two different types of Rogers Orders (also known as Rogers Guardianships). They are as follows:
Rogers Orders via the District Court: These Rogers Orders 8b orders. An 8B order may only be entered against a person who has been involuntarily committed to a hospital. Usually, 8B petitions are filed at the same time as a civil commitment petition, though they may be filed at any time during the period of commitment. If the civil commitment petition and the 8B petition are filed at the same time, the civil commitment petition must be heard first. A hearing on the 8B petition can only take place after and if the judge has decided to commit the person They exist only for the duration that someone is committed to that facility, and expire upon release. While in hospital, these orders do allow for the administration of psychiatric drugs over an individual’s objections.
Rogers Orders via the Probate Court or ‘Probate Rogers’: This version of Rogers Orders applies to people who are not in psychiatric facilities — that is, for instance, people living in the community, in a nursing home, or in a prison or jail. There is no clear law about how long the Rogers Order can last, but the standard is 12 months (with options to review and renew). If no expiration date is set, it’s highly advisable for the person’s appointed legal counsel to go back to the courts and request one.
There are a number of rights and requirements that come along with the assignment of a Probate Rogers, and these include the assignment of a ‘Rogers Monitor’ who is responsible for checking in regularly with the individual and reporting back to the court on issues such as negative effects being experienced, perceived changes in the person’s ability to make their own decisions, and so on. Periodic reviews in the court (for which the person under the Rogers Order must have the opportunity to be present) are also required, although it’s further important to note that either side can request a review at any time, and there is no need to wait for annual review points. Note: Many periodic reviews are handled “administratively,” that is without a hearing before a judge. Persons wanting changes in an order or to have the order dismissed, should be certain to tell their lawyers that they want a hearing before the judge.
However, it’s important to note that a Probate Rogers does not actually allow for forcible administration of psychiatric drugs in the community.
So, What Does a Probate Rogers Order Really Mean?:
Contrary to popular belief, a Probate Rogers does not mean that when someone refuses to take their prescribed dose of psychiatric drugs, that they can be picked up by the police or an ambulance and shuttled off to the hospital to receive a shot or otherwise be forced to take their pills. This sort of action is a feature of Involuntary Outpatient Commitment laws (also euphemistically referred to as ‘Assisted Outpatient Treatment’ or AOT), but Massachusetts is one of the few states left that has not implemented such legislation.
In fact, the Rogers Order is written such that a simple refusal to take one’s psychiatric drugs really doesn’t mean much of anything. No one should be able to order transport to a psychiatric hospital for evaluation unless they meet the threshold of presenting a serious risk of harm to themself or others. And, even if transported, law then requires that person to be evaluated by a qualified professional before being admitted to a psychiatric unit against their will. Basically, the same rules regarding forced hospitalization and drugging apply to any individual in the state, whether or not they’ve been assigned a Rogers Order.
In other words, if someone under a Rogers Order refuses to take their prescribed psychiatric drugs, but does not become a serious and immediate threat to themself or anyone else, no action should be taken (except, perhaps to go back to the courts and question the need for the drugs in the first place).
Unfortunately, what should happen and what does happen aren’t always the same thing, and people who have been assigned Rogers Orders can face force that was not at all intended under the original ruling.
Problems with the Rogers Order:
There are many problems with the Rogers Order legislation. A few of the most substantial issues include:
- Re-interpretation of Probate Rogers to mean someone can be picked up and hospitalized for refusing their pills: Although the law clearly states that someone can only be transported to the hospital on the basis of imminent risk, some doctors and other professionals have begun to interpret refusal of psychiatric drugs as evidence of imminent risk. This is a clear distortion of that concept, but because of the weight given to doctor’s opinions, it is difficult to dispute and has resulted in both threats of and actual forced hospitalizations.
- Distortion of the ‘Substituted Judgement’ principle: More often than not, courts and lawyers (intentionally or otherwise) stray into the territory of using the ‘best interest’ standard instead of ‘substituted judgement.’ In our culture, doctors are often revered as the experts, and people with psychiatric diagnoses are commonly portrayed as unable to take care of themselves even before a court determines them to be ‘incompetent.’ This very ingrained way of seeing these two groups of people makes it extremely hard to truly stick to the idea that the goal is to prioritize what the person would choose for themself, or to accept that that really may be different than what the doctor says sometimes. In some instances, this has even looked like the defense lawyer consulting with the ‘other side’ (those who are seeking a Rogers Order) to help move the process along.
- Lawyers and judges are not well trained in non-medical ways of understanding distress: Although lawyers and judges are very well trained in their own professions, and must meet rigorous standards to take on the roles that they do, they often have little to no training in anything but a very traditional, medical view of psychiatric diagnosis. This can be a serious barrier to defense, especially when ‘failure to acknowledge one is mentally ill’ can sometimes be called ‘lack of insight’ and used as justification of forced treatment.
Other problems and abuses include (but are not limited to):
- Failure to notify someone of their own Rogers hearing
- Continuing to act as if an expired Rogers Order is still active
- Failure on the part of Rogers Monitors to meet regularly with those to whom they’re assigned
- Failure to take negative effects of neuroleptics (aka antipsychotics) seriously
- Routinely assigning Rogers Orders to all or most individuals landing in a particular facility, regardless of their particular situation
- Putting someone in an ‘all or nothing’ situation, where it is far more difficult to negotiate changes or psychiatric drug withdrawal plans (sometimes forcing people to turn away from clinical supports rather than being able to work with them)
Additionally, many Probate Courts in Massachusetts appoint fully empowered guardians (or, sometimes, a limited guardian) whenever a Rogers petition is approved. Although courts may assign someone a Rogers monitor without any other guardianship being ordered, this is often not the case. Therefore, in order to petition for a Rogers Order in a number of counties, the petitioner must also seek appointment of a full guardian. This means that (in those areas), a Rogers Order is now connected to a much greater loss in freedom and autonomy, while also putting an unnecessary strain on the system to come up with more guardians than were needed in the past.
There are many lessons to be learned from the Rogers Order legislation and what it has become. Perhaps at the top of the list, though:
- We must do a far better job of educating ourselves and each other about our rights, because when we don’t, they are defined and re-defined for us, and that is much harder to undo than it would have been to prevent in the first place.
- We have a great deal of work ahead of us to support providers, lawyers, judges and others in the community to understand the many ways to make meaning of deep emotional distress and the many options for supporting someone to move through such dark spaces. This is a key step in reducing the frequency by which forced drugging is seen as a necessary step, and also essential in providing those charged with defending us with the tools they need to understand our varied perspectives.
- Psychiatric discrimination is commonplace, including in the legal system. It allows the voice of doctors and others to drown out our own voice, even when laws are written that demand otherwise. We must find ways to better strategize and bring change.
For more information:
- Opposing Forced Drugging (Rogers Orders) in Massachusetts: Law Project for Psychiatric Rights: http://tinyurl.com/FCdrugging
- Substituted Judgement Law: Massachusetts General Laws, http://tinyurl.com/MGLruby
- Ruby Rogers Helped Win Key Rights for Mentally Ill: Boston Globe, http://tinyurl.com/Ruby-Rights
- Rogers Ruling: Massachusetts legislature, http://tinyurl.com/Rogers-Ruling
- Substituted Judgement Doctrine Expands Beyond Life Prolonging Decisions—In re Guardianship of Roe: Western New England Law Review, http://tinyurl.com/SJWNELR
Sidebar: What is Substituted Judgement?
In situations where someone has been deemed unable to make their own decision, an effort must be made by a court of law to reconstruct what that person would do if they were able to make an independent choice. A number of factors that an individual would typically consider in making their own decision must be considered by the court in their effort to make a determination.
- Risks of the proposed intervention
- Impact on family (while also considering whether family relationships have been close or estranged, etc.)
- Any relevant religious or spiritual beliefs that may guide or prohibit certain interventions
- Prognosis with and without treatment
- Potential negative effects of the treatment
However, here’s the real challenge: The courts should attempt to consider these points in the same way that the individual in question would consider the same points for themself. In other words, the decision should not be based on what doctors, family members, or courts think is ‘best’ for that person, but rather, what it is believed they would choose if they were in a space to make an informed choice themselves. (Input from doctors, family, etc. may be considered, but only to the extent it is believed that person would consider such input themself.) So, too, is what they’re saying at the moment, even if the court believes that they’re not able to make the decision on their own. A previous ly developed advanced directive (or WRAP plan, etc.) should be especially strong perhaps even controlling, evidence of what the person would do if they were able to make their own decision.
The point of this approach is to preserve respect for autonomy. It is substantively different than the ‘best interest’ standard which would empower someone else to do what they think is ‘best’ or ‘good’ for the person presently believed to not be able to make their own decisions.
What Happens When Someone is Deemed ‘Incompetent’ but is Willing to Consent to Taking Neuroleptic Drugs?
The Rogers Order is actually not just about forcing someone who is refusing neuroleptic (commonly referred to as antipsychotic) drugs to take them. At its foundation, the Rogers ruling is about whether or not someone is capable of making an informed decision (regardless of whether in alignment with doctors advice or not). It’s a statement of competence more than anything else, and thus even someone who is willing to follow doctor’s orders where neuroleptics are concerned should technically only do so under a Rogers Order if they are deemed unable to make independent decisions for themselves.
Specifically, the Rogers ruling says:
“[H]owever, because incompetent persons cannot meaningfully consent to medical treatment, a substituted judgment by a judge should be undertaken for the incompetent patient even if the patient accepts the medical treatment”
Whether or not this level of enforcement is desirable is another story, as it’s generally much harder to get off a Rogers Order than to avoid one altogether.
Exceptions to the Law: Force Without Court Involvement:
It is commonly accepted by the law that there are two circumstances under which neuroleptic drugs (commonly referred to as antipsychotics) can be forced on someone in the state of Massachusetts without court approval. These include:
- Police Power’ Exception: This exception states that, in circumstances where there is imminent danger posed and the use of a neuroleptic drug would be seen as the ‘least restrictive’ option available to reduce that risk, such a drug may be administered against someone’s will. The use of neuroleptics in such circumstances is a form of restraint and is considered an “emergency use.” Therefore, it must be discontinued as soon as the emergency no longer exists.
- Parens Patriae’ Exception: This exception states that, where “immediate, substantial and irreversible deterioration of a serious mental illness” is concerned, psychiatric drugs may be forcibly administered, though only on a short-term basis while a judicial ruling is being sought. This is a particularly tricky exception, given that there is little scientific evidence of such a phenomenon of irreversibility.