At the time this was a relatively new class of drugs, and as we all know much has happened since. The law has not been updated to change the term to neuroleptics nor to specifically address other new classes of drugs that also alter brain chemistry. This may be a court case waiting to happen.

The Rogers case involved whether doctors could forcibly (using physical force or threatening) administer medications of this type or if the courts should be involved in making this decision. Not surprisingly the judges decided that judges should make these decisions, not doctors. This also means that family members and legal guardians cannot make these decisions. The court's decision stated that this is such a dangerous group of drugs that makes such a fundamental change in the brain and perception and that forcible administration is so intrusive that these questions require judicial involvement. At the time Tardive Dyskinesia was first being understood and was much more of a problem than now, and since it is irreversible this increased the level of importance of the decision. The decision compared it to ECT. There was already a law on the books that ECT required a judge to give consent since almost by definition someone so impaired that ECT was their best option was thought incompetent to give full informed consent.

It seems like this rarely happens here. How should we use this information?
It is an open secret that Rogers is widely ignored in practice. This is particularly the case in long-term care facilities, but also in acute care hospitals. The decision was based on the specifics of the time and place of the case- a state psychiatric hospital and probably never took into account the impact on these other settings. Judge Harms predicts, however, that at some point this will lead to a "Rogers 2" case.

As we learned in the "Ask the Judge" session on guardianship (MGH Community News January 2000), doctors can treat incompetent patients in an emergency. This applies to these drugs. So someone can legally be forced to take these medications to "cure the emergency" for the commonly accepted 'hours, or maybe days, but not weeks' under this exception.

There are gray areas under this law: What signifies acceptance? What signifies incompetence? If someone is passively accepting, but incompetent they should have a Rogers hearing, but this kind of case has not been tested in court.

So what does a Rogers Guardianship do?
Rogers guardianships typically last 1 year. A treatment plan is submitted with specific drugs and a dosage range and alternative drugs/doses specified. A GAL looks at the plan (is it working? Is the patient experiencing side effects?). Any alternative medications or doses not listed require a court review. This can be done relatively easily.

There is little training for judges on current medications and their uses and side effects. Judge Harms stated this is a fair criticism of judges that they've taken on the responsibility for decision-making in this area, but don't have the medical expertise. However there are some lawyers who specialize in mental health who do good work in this area.

Rogers guardianship do not have any mechanism to force people in the community to take these medications, so is meaningless for that population.

Judge Harms has made a copy of the case available. Please contact the Community Resource Center if you want a copy.