Full opinion text
OPINION AND ORDER WALINSKI, District Judge: PRELIMINARY STATEMENT This is the third in a series of Orders addressing the single-judge issues herein. Said orders shall serve as the Court’s findings of fact and conclusions of law, pursuant to Rule 52, F.R.Civ.P. ISSUES PRESENTED ISSUE 5: WHETHER THE METHODS USED BY THE PROFESSIONAL STAFF TO CLINICALLY EVALUATE AND DIAGNOSE PATIENTS AT LIMA STATE HOSPITAL IS A VIOLATION OF THE FOURTEENTH AMENDMENT. THIS IS MEANT TO INCLUDE, BUT IS NOT LIMITED TO, TESTING, LACK OF TREATMENT, LACK OF PROFESSIONAL QUALIFICATIONS OF THE STAFF. A review of the subissues and arguments presented in support of the parties’ respective positions on this issue indicate to the Court that they have been addressed elsewhere through the Order of December 9, 1974 and subsequent supplemental Orders, including the Order issued this date. It is therefore the opinion of the Court that this issue requires no individual discussion. ISSUE 6: WHAT SHOULD BE APPROPRIATE STANDARDS FOR NUMBERS AND QUALIFICATIONS OF STAFF. A. Numbers of Staff The stipulations filed herein reflect the following staff (for a population at that time of approximately seven hundred fifty (750)) [Stip 408]: 6 Physician Specialists 3 Medical Assistants (unlicensed physicians) 8 Psychologists 1 Caseworker 10 Social Workers 21 Activity Therapists 10 Teachers 1 Educational Specialist 1 Principal 14 Nurses 1 Pharmacist 1 Pharmacist Aide 1 Psychoatric Nurse Director 271 Attendants 1 Institutional Administrator 2 Chaplains There appears to be no question that an adequate staff [in size and qualifications] is an indispensible component in the delivery of treatment to the institutionalized. Both plaintiffs and defendants approached the Court with proposed plans for staffing. The plaintiffs submitted the depositions of three (3) experts, each of whom proposed certain patient/staff ratios much like those ordered in Wyatt v. Stickney, 344 F.Supp. 373, 383 (M.D.Ala.1972). The defendants propose a programmed staffing method development for the California Department of Mental Hygiene known as SCOPE (Staffing the Care of Patients Effectively). The SCOPE program grew out of a request by the California Legislature for a study to evaluate the treatment manpower needs of the state hospitals and to develop recommendations for new standards. A Committee was then formed of representatives of: American Association for Mental Deficiency, Region III American Psychiatric Association, Northern California Psychiatric Society American Psychiatric Association, Southern California Psychiatric Society California Association for Mental Health California Council for Retarded Children California Medical Association California Nurses Association California Society of Psychiatric Technicians California State Psychological Association California State Council of National Association of Social Workers Rehabilitation Service Association The Committee met for approximately eighteen (18) months and prepared a report which was designed “to establish basic levels of treatment staff time” for patients in the state’s mental health facilities. Essentially, the SCOPE program is a statistical and engineering approach to evaluating the time requirements for the performance of medical, psychological, social work, rehabilitative and ward service functions within the hospital. The actual implementation involves stopwatch measurements of the times needed for trained, experienced personnel to perform needed custodial tasks; work samplings were then performed at random times, twenty-four (24) hours a day, over a seven (7) day period; finally, physicians, psychologists, rehabilitation therapy specialists, social workers, nursing supervisors, as well as nurses and psychiatric technicians were asked to report their work activities under eleven (11) different headings over a seven (7) day period. The Committee then made an input decision as to the level of care to be provided each patient and, by inputing the various factors (including, inter alia, a variable dependent upon a cross-sectional study of the average patient’s demand reflected by a study of personal characteristics and individualized treatment plan content) was able to translate task requirements into a usable calculation of needed staff time to perform those functions. (See generally Ex. 1, 2 to Naleway Depo.) Plaintiffs’ experts suggested that a method for determining adequate staff size was to propose certain set ratios of staff to patients which would be maintained as mínimums. Unfortunately there was a wide variance in the opinions of the various experts. See Amicus Brief, Chart at 60-61. Even while proposing ratios, Dr. Clark qualified his recommendation with “I think the make up of the treatment team would depend to some extent on type of patient and their particular needs. It could include some of the following types of individuals, not necessarily all of them and not necessarily limited to them * * *.” Clark Depo. at 64. Dr. Brelje suggested a detailed staffing proposal but followed with: Now, that I hold out as one possible way of staffing a unit of 70 patients. It seems to me that still meeting, say, accreditation standards, it’s possible to staff that 70 with a differing of consultation within it * * *. So I would hate to have that staffing pattern propogated as an ideal or the ultimate or something. Brelje Depo. at 112. Dr. Walter Fox, who testified in Wyatt, also proposed minimum staffing levels as set figures but, in response to an inquiry about whether a more flexible method might be preferable answered: “Yes, I think there is a better system. The Joint Commission, for instance, does not set ratios, but uses such terms as ‘there shall be adequate staffed social service departments or functions’ ”. Fox Depo. at 58. Dr. Fox then explained that the Commission [The Joint Commission on the Accreditation of Hospitals] uses a voluminous questionnaire and an on-site survey coupled with a computer analysis of the data to determine the adequacy of staffing levels. Fox Depo. at 59. The plaintiffs seem to base their objections to the SCOPE system on the premise that it is simply quantitative in nature. Unfortunately any system of setting staff levels must address that problem. Only qualified, well-trained staff members dedicated to their respective professions can assure that quality treatment is being provided. Another objection to an implementation of the system (at least in the form which it is used in California) is that it is premised upon an unacceptably low level of custodial care (i. e. three (3) baths per week). That objection is well taken; however, this Court has, in its earlier Orders, set out very detailed and specific levels of care to be afforded the patients at LSH. It is assumed that any computerized time-study audits used by these defendants would input, as standards, the details of the Orders herein. Finally, the plaintiffs contend that the SCOPE audit and survey conducted at LSH by defendants prior to trial of this action are, of necessity, deficient in that no individualized treatment plans were in effect and that, therefore, it would have been impossible to project the needed professional staff times to provide psychiatric and rehabilitative treatment. Such is no longer the case. Individualized treatment plans have been ordered and implemented for each of the patients at LSH. Again, it is presumed that those plans would provide the treatment criteria upon , which to base a need for specific numbers of professional treatment personnel. It therefore appearing to the Court that a systems approach to staffing is a scientifically valid and reasonable method, applied within the parameters of this and the earlier Orders of the Court, it is ORDERED that the defendants prepare forthwith an analysis of staffing needs based upon the methodology developed for the California Department of Mental Hygiene. In order to monitor compliance with this Order, defendants will provide the Special Master with copies of preliminary input data including, but not limited to, service needs of patients as well as proposed diagnostic and treatment programs necessary to meet those service needs most effectively. (It is expected that these proposed programs will find their genesis in the individual treatment plans). The proposed programs will be broken down into specific tasks by specific types of individuals, and attaching to each task the time necessary for effective performance. Again, following the methodology proposed by defendants, it is assumed that the tasks and task times will be classified by patient type and within one of three (3) program phase headings-intake program, residential treatment program (including non-professional custodial functions and professional treatment tasks) and release programs (including both intramural and extramural prerelease planning services). Providing such input data before translating functional needs into requisite staffing levels will allow this Court to monitor compliance with the crux of this entire matter-the delivery of treatment guaranteed plaintiffs by the earlier remedial orders of this Court. As a postscript, the Court notes that the defendants have repeatedly asserted that preliminary studies have indicated that SCOPE may well result in higher gross numbers of staff than the ratios reflected in Wyatt. While the Court is accepting defendants’ opposition to fixed ratios, it will look with some suspicion upon a result which falls beneath the Wyatt standards. B. Racial And Gender Composition Of The Staff. Plaintiffs seek an order of this Court requiring defendants to appoint “a representative number of black employees at LSH, as well as a staff varied in sex.” Essentially the argument is that adequate treatment requires a staff roughly in proportion (racially) to the racial composition of the patient population. At the time of the stipulations herein, the patient population was 44.8% black (Def. Ex. 36). While the expert testimony taken herein lent credence to the claim that racial identity with patients may well be helpful in the treatment process, the Court is unpersuaded that adequate treatment cannot be provided in its absence. Viewed in the context of a right to treatment this Court will order no affirmative hiring practices to increase either the number of blacks or women on the professional or non-professional staff at LSH. C. Qualifications Of Psychologists And Attendants. 1. Psychologists. Plaintiffs argue that status as a QMHP Psychologist be conditioned upon the candidate’s possession of a Ph.D. in clinical psychology. Defendants maintain that the individual need only be licensed as a psychologist under Ohio Revised Code § 4732 to qualify. Since 1976, only persons with a Ph.D. would qualify for a license under Ohio law. Plaintiffs’ argument, then, would seem to address itself primarily to people licensed before 1976. A more significant standard would appear to be a requirement that the psychologist be trained in the relevant sub-area of his specialty, i. e., clinical psychology v. education, guidance or counselling. It is therefore the Order of the Court that the requirement for qualification as a QMHP Psychologist (as it is used herein) shall be: An individual with a Ph.D. in clinical psychology or A licensed psychologist (pursuant to Ohio Revised Code § 4732) with a degree, or four (4) years of experience in, clinical psychology. 2. Attendants. The experts were essentially in agreement, and this Court will find, that the minimum entry qualification for attendants hired after the date of this Order shall be: A high school diploma, together with a demonstrated stability and ability to work with others. Defendants are hereby directed to formulate and implement a testing procedure to screen from employment those persons whose psychological make-up would be inappropriate to a therapeutic environment. The Court further refers the parties to the contents of this Order in regard to Issue 9 (infra) on the in-service training opportunities to be provided to the non-professional staff. ISSUE 7: WHETHER THE FOURTEENTH AMENDMENT REQUIRES PEER REVIEW OF INDIVIDUAL TREATMENT PLANS BY PROFESSIONALS NOT OTHERWISE EMPLOYED BY THE DEFENDANTS. This court, in its Order of September 9, 1974, required that an individual treatment plan be formulated for each patient covering the period from initial diagnosis and observation through release to a less restrictive environment and transitional care for release to the community. See § B, p. 12-18. Plaintiffs contend that, for a number of reasons, the Fourteenth' Amendment requires that the mandated plans (and presumably, their implementation) be monitored by qualified professionals not regularly employed by the Department of Mental Health and Mental Retardation. Although outside peer review may well be a desirable way to monitor compliance with a central portion of this Court’s 1974 Order, it cannot be said to be mandated as a Constitutional minimum. Assuming that the professional staff is qualified, one of plaintiff’s own experts conceded that an internal peer review would be satisfactory. See Dr. Fox Testimony, Tr. 255-259. The Court has set qualifications prerequisite for the professional staff and must assume, without evidence to the contrary, that the professional staff is qualified to discharge its responsibilities. The Standards promulgated by the Joint Commission for the Accreditation of Hospitals do not impose an outside peer review requirement for patient care evaluation. JCAH Standards at 35. The Court finds that the defendants’ position on outside peer review is well taken and hereby declines to order such a procedure. ISSUE 9: WHETHER THE IN-SERVICE TRAINING AT LSH MEETS CONSTITUTIONAL STANDARDS. FACTS: All new LSH employees are required to complete an orientation program designed to familiarize them with both the organization and structure of both the Ohio Department of Mental Health and Retardation and Lima State Hospital itself. An eight (8) hour course in first aid is included in the thirty-two (32) hour curriculum (Stip. 126). During the probationary period allowed by the Ohio Civil Service, direct care personnel are required to complete an eighty (80) hour program which outlines internal administrative procedures, various ailments common to the patient population and commonly used pharmaceuticals (Stip. 125, 127). A third step training program for Psychiatric Aide I and Forensic Aid covers a more extensive discussion of direct patient care and treatment. Training of Social Workers consists of a week of general orientation and two weeks of supervised work. Thereafter the social worker is assigned a regular case load. There is no scheduled in-service training for social workers. (Stip. 159, 160). Psychologists are likewise given a brief period of supervised employment and are then provided with a case load. (Stip. 174, Seitz Depo., p. 135-136). In-service training is absent for most, if not all, of the professional staff. The stipulations herein revealed no such programs for registered nurses (Stip. 109), or social workers (Stip. 160). Testimony at trial provided a similar conclusion in respect to the education staff and the balance of the professional staff (Tr. 102, 406, 579). CONCLUSIONS OF LAW: The right to treatment must necessarily presuppose a trained and qualified staff. See generally, Wyatt v. Stickney, 344 F.Supp. 373, 383, 405-406 (M.D.Ala. 1972). The experts who testified herein were virtually unanimous in concluding that continuous in-service training is essential for professional and non-professional staff in order for them to improve and update their knowledge and abilities (Tr. 101-102; Fox Depo., p. 97; Clark Depo., p. 62; Brelje Depo., p. 101). Even defendants’ Director of Mental Health admitted that such programs were badly needed. (See Pl. Ex. L-l to Gaver Depo., p. 4). The attendant in-service program, while providing an academic background, is deficient in practical training and little followup is provided to ensure that more than lip-service is paid to the training program. In-service training appears particularly important herein considering that the defendants have, throughout the course of this litigation, taken the position that it is extremely difficult, if not impossible, to attract qualified personnel to the institution, primarily because of its location. It would appear that the only alternative method of building a qualified staff is to provide intensive training for those willing to accept initial employment. It is therefore Ordered that the defendants provide a full range (both professional and nonprofessional) staff training program that includes: (1) Orientation for all new employees to teach them the philosophy, organization, programs, practices, and goals of the facility with particular emphasis on practical aspects of team treatment, encouraging nonprofessional participation in treatment programs; (2) Induction training for each new employee, so that his or her skills in working with patients are increased; (3) In-service training for employees who have not achieved the desired level of competence, and opportunities for continuous in-service training to update and improve the skills and competence of all employees (both professional and nonprofessional). (4) Continuing education activities for all staff shall focus on reorienting current attitudes and on the adoption of a team approach to treatment. (5) Staff education programs shall use consultants and shall capitalize on such new educational approaches as simulation, role playing, videotaping, feedback, on the job training activities, and the like. (6) Direct care staff shall be given intensive in-service training with emphasis on the particular things they can do to assist in program activities for patients. (7) The institution shall institute systematic exit interviews for all employees terminating employment. These interviews shall be forwarded to the Department of Mental Health and Mental Retardation central office for evaluation. The interview format shall be used not only to determine any causes of employee dissatisfaction, but also to elicit any instances of dehumanizing or abusive practices and other information relevant to efforts to improve care and programming for patients and the working conditions for employees. ISSUE 10: WHAT CHANGES IN THE PHYSICAL PLANT AT LIMA STATE HOSPITAL ARE CONSTITUTIONALLY REQUIRED? FACTS Lima State Hospital was completed and began receiving patients in 1915. At trial it housed patients in two principal buildings-the “old” building with twenty-four (24) wards (1,010 rooms), dining and kitchen facilities, the “male hospital”; the “new” (“Aseherman”) Unit completed in 1952 with four (4) wards (276 rooms), dining facilities, and a segregated visiting area (Stip. 14,15). The entire facility is surrounded by a thirteen (13) foot high chain link fence, topped with barbed wire. Incorporated in the fencing are seven (7) guard towers manned on a round-the-clock basis. Mens wards at LSH are generally classified as strong, dormitory or open with descending levels of restriction on movement in each (Stip. 17, 20-23). Other types of wards include observation, womens, and chronic medical. In those wards which utilize individual rooms, room size varies from 6' X 9' in the “old” building to 7' X 11X in the Aseherman building. At no time since 1974 has more than one patient occupied each of the rooms. While the institution purports to be a hospital, the facility is unquestionably a prison in its design, furnishings and atmosphere. See Stip., App. H at p. 2; id., App. G at p. 2. See also testimony of Carl B. Clements, Ph.D., Tr. at p. 36. All evidence before the Court tends to confirm Dr. Terry Brelje’s description of the conditions, attitudes and environment of LSH as “dehumanizing, repressive and countertherapeutic-” Stip., App. G, “Summary of Findings-Lima State Hospital”, p. 2. CONCLUSIONS OF LAW: The initial Order of this Court recognized plaintiffs’ constitutional right to treatment in a humane therapeutic environment. Order, September 9, 1974. The expert opinion offered in this cause, referenced above, established beyond question that LSH failed to provide such a humane therapeutic environment, and further established that the physical features of the institution contributed heavily to this failure. Accordingly, numerous physical changes were mandated at LSH by this Court’s Order of September 9, 1974, including the right to keep and use personal possessions, Order at p. 25, privacy and solitude, Order at p. 26, floor space in multi-patient rooms, installation of screens and curtains, toilets for single rooms, Order at 28, closets or lockers for personal possessions, partitions between toilets and bathing areas, day room space and furnishings, Order at 29, dining room space, linen and laundry, housekeeping, heat and ventilation, Order at 30, hot water, refuse facilities, and fire safety, Order at 31-32. The Court hereby reaffirms those mandates and further determines that the State must forthwith reach full compliance with the 1974 Order. Although numerous waivers have been granted since issuance of that Order in those areas which would require extensive capital expenditures, (primarily on the assurance that regional forensic centers were planned to reduce the population of LSH,) sufficient time has elapsed within which the defendants could reasonably have been expected to either close this facility or reduce its population to such a level that the required capital expenditure would be greatly diminished. Beyond the relief previously mandated, plaintiffs ask the Court to compel numerous other remedial measures. Defendants take the position that additional physical changes are unnecessary to comply with constitutionally minimum standards and that further, such changes would seriously impair the maximum security character of the institution. In addressing the various additional remedial measures sought relative to the physical plant it is important to once again recognize that this Court is not empowered to compel the State to provide all things considered optimally desirable in a psychiatric facility. Rather, the power of the Court is limited to determining what remedial action is required to satisfy judicially recognized constitutional mínimums. It is under this analytical scheme that plaintiffs’ claims must be scrutinized, keeping in mind that LSH is a maximum security psychiatric facility and as such presents unique problems. The Court adopts as its benchmark the notion that a remedial measure is not constitutionally compelled unless its absence causes a condition which is violative of the Eighth Amendment prohibition against cruel and unusual punishment, or is so countertherapeutic as to infringe upon plaintiffs’ right to treatment in a humane therapeutic environment. It is against this standard that plaintiffs’ claims are measured. A. Room Size Plaintiffs ask the Court to mandate that all patients have private rooms with no less than 100 square feet of floor space. The Court finds no authority for the proposition that all patients must have their own rooms. The standards of the Joint Commission on Accreditation of Hospitals require only that sleeping facilities provide appropriate privacy for each patient. This requirement is adequately met by compliance with the provisions of Pt. Ill, § G(2) of the 1974 Order. The Court therefore declines to require private rooms for all patients. The issue of room size was dealt with extensively in the case of Chapman v. Rhodes, 434 F.Supp. 1007, 1021 (S.D.Ohio 1977). In that case, the Court did extensive legal and nonlegal research on the acceptable living space which meets constitutional minimums, analyzing the issue under the Eighth Amendment. Citing Gates v. Collier, 423 F.Supp. 732, 743 (N.D.Miss.1976), the Court found that “ * * * 50 square feet of living space is the minimal acceptable requirement to comport with the Constitution.” It has also been held that, assuming that additional space is provided for recreation and communications purposes (day rooms), single occupancy isolation cells of 60 square feet comply with the Constitutional mínimums. See Pugh v. Locke, 406 F.Supp. 318 (N.D.Ala.1976). The Court finds no judicial precedent for the proposition that 100 square feet of floor space is a constitutional minimum. Moreover, even the expert witnesses who testified herein or whose depositions were provided to this Court were unwilling to state that 100 square feet constituted a constitutional minimum. Dr. Brelje testified that “if the treatment itself that’s occurring is adequate or even better than adequate, * * * one might be able to live with [the current T X 9' rooms].” Brelje’s Depo., at 152. Dr. Fox, another plaintiffs’ expert, testified that the important consideration was in room arrangement, not its size. Fox Depo., at 88. If the room provided carpeting, drapery, access to lavatories, a place for personal belongings and a place to sit and write, “I wouldn’t be too concerned about the size of it.” Id. The Court therefore finds that the room size presently afforded patients at LSH residing in individual rooms is within constitutional mínimums. Further the Court reasserts its mandate of the 1974 Order (Pt. Ill, § G(2)) which requires that patients residing in multi-residency rooms be afforded at least 80 square feet of living space adequately screened. B. Ventilation This Court has previously mandated that: Adequate heating and ventilation systems and equipment shall be afforded to maintain temperatures and air changes which are required for the comfort of all residents at all times. Ventilation systems shall be adequate to remove steam and offensive odors or to mask such odors. Pt. Ill, § G(10), Order of September 4,1974. Plaintiffs seek a further order requiring air conditioning to be installed in all living quarters. The Court is unable to find a single case in which a court has imposed a blanket requirement of air conditioning. The more reasonable position appears to be that taken by the Court in Wyatt v. Stickney, 344 F.Supp. 373 (N.D.Ala.1972), in which the Court ordered that temperatures not exceed 83° Fahrenheit nor fall beneath 68° Fahrenheit. That standard is imposed herein and the defendants are hereby ordered to provide such ventilation systems (or air conditioning) to insure that that temperature range is assured within the institution. C. Lighting Plaintiffs ask the Court to mandate that all patient areas be provided with proper and adequate lighting, and that the lighting in each individual cell be controlled by the resident. The record supports plaintiffs’ contention that the absence of adequate light, and control over light, creates a demeaning and non-therapeutic environment, and the Court therefore mandates such relief. D. Toilets, Bathing Facilities and Lavatories Perhaps the most offensive evidence presented herein related to the failure to provide adequate and private toilet, bathing and lavatory facilities. It does not take a medical expert to conclude that the absence of such facilities is dehumanizing and countertherapeutic. In addition to the remedial measures required by Pt. Ill, § G(2), (3) and (4) of the 1974 Order it is hereby ordered that: (a) Each shower for patient use shall be equipped with a mixing valve which will enable the patient to control the water temperature. (b) A lavatory sink shall be provided in each individual room, or, as an alternative, the patient shall be allowed egress at all times from his room to allow him to reach a supply of water for drinking and washing. E. Removal of Security Apparatus Plaintiffs also seek relief regarding the security system at LSH. This Court has already dealt extensively with the role of security at the facility. See Order and Opinion of September 24, 1978. On the record before it, the Court cannot find that the existence of security fences, grill work, window bars, gates, peepholes and locks is so countertherapeutic as to violate the patients’ constitutional right to treatment. Therefore, recognizing the maximum security character of the institution, the Court must deny plaintiffs’ demands for alterations in the physical security apparatus of the facility. As a safety measure, however, the Court orders that door locks shall be kept to a minimum, consistent with the maximum security nature of the facility. Further, as a general rule, doors to patient rooms and wards shall not be locked, except as provided by state or local authorities. When such approval exists, the use of locks shall be in accordance with the National Fire Protection Association. F. New Construction Plaintiffs ask the Court to order the construction of a modern activities building as well as additional buildings for the purpose of providing therapy, vocational and occupational rehabilitation and recreation. Defendants do not contest the appropriateness of providing adequate space for these functions, but do challenge the need for new construction to accommodate such functions. Given the size of the existing facilities and the reduced population therein (currently slightly in excess of 400 patients), the Court finds no support in the record for plaintiffs’ claim that additional construction is constitutionally required. The existing structures, properly utilized, would appear to afford adequate space for providing all constitutionally mandated services. Therefore, the Court hereby declines to order the additional construction prayed for. G. Visitation and Reintegration The importance of family and community ties to an effective treatment program and community reintegration is clearly established by the record. Therefore, the Court hereby orders that: (a) The facility shall define, and be accessible to, the population it serves. (b) Attractively furnished rooms or areas should be provided for private visitation between patients and visitors. (c) Policies regarding visitation shall include the patient’s right to privacy. Places for visiting in private shall be provided. H. Furnishings The Court has previously mandated that all dayrooms be attractively and adequately furnished. Lest there be any variance relative to patient living areas, it is further ordered that all patient living quarters shall be adequately furnished, pleasantly painted, with appropriate floor and window coverings. Miscellaneous other measures of relief are requested by plaintiffs, including, inter alia, a laundry area, accessible to all patients, for washing clothes. While this and other measures might be desirable, the Court cannot find that the absence of such will infringe upon plaintiffs’ constitutional rights. Therefore all other specific measures of relief sought by plaintiffs are denied. The defendants are hereby ordered to provide this Court with a plan and time table for implementing the above requirements, as well as all improvements mandated by the Court’s Order of September 4, 1974 which have not yet been made. That plan shall be submitted to the Special Master on or before December 1, 1980. The Court shall maintain jurisdiction to determine the adequacy of the plan and schedule. ISSUE 11: WHETHER PATIENTS AT LIMA STATE HOSPITAL HAVE A CONSTITUTIONAL RIGHT TO PRIOR CONSENT TO THE ADMINISTRATION OF MEDICATION. ISSUE 12: WHETHER PATIENTS AT LIMA STATE HOSPITAL HAVE THE CONSTITUTIONAL RIGHT TO PRIOR CONSENT TO HIS OR HER PARTICIPATION IN PARTICULAR TREATMENT MODALITIES. When originally framed, Issues Eleven and Twelve dealt with the constitutional limitations on the State’s power to administer a number of different types of treatment. Specifically, these issues asked whether the State must obtain a patient’s informed consent before subjecting him to (1) psychotropic drugs; (2) convulsive therapy; and (3) behavior modification programs (the Ascherman self-government program, the token economy system, and reality therapy). Since the hearing and post-hearing briefing by the parties on the issues, LSH has discontinued its compulsory behavior modification programs, and the issue of the patient’s right to refuse convulsive therapy (if not his participation in one of the behavior modification programs) has been mooted with the enactment of Ohio Revised Code § 5122.271. Thus, of the treatments originally included within the framework of Issues Eleven and Twelve, only the compulsory administration of psychotropic drugs remains. I. Facts: A. The Use of Psychotropic Drugs at LSH By far the most popular form of “treatment” at LSH is the use of psychotropic drugs. Approximately 73% of the patients receive some kind of psychotropic drug, with the “usual” dosage being the twice daily administration of the combination of 100 milligrams thorazine, 10 milligrams stelazine, and 2 milligrams artane. (Stip. 166, 281; Test. Dr. G. Clark.) Such widespread use of psychotropic drugs, both in terms of the number of patients receiving drugs and the dosages that they receive, is not, however, necessarily supported by any sound medical course of treatment. Put simply, the testimony at trial established that the prevalent use of psychotropic drugs is countertherapeutic and can be justified only for reasons other than treatment-namely, for the convenience of the staff and for punishment. (Test, of Dr. G. Clark; Test, of Dr. W. Fox; Stipulations by the parties, Appendix H.) Psychotropic drugs are not only overprescribed; they are also freely prescribed. They are prescribed by both licensed and unlicensed physicians. Both licensed and unlicensed physicians regularly prescribe drugs for any patient in the institution without regard to whether he is personally assigned to the patient or whether he has even seen the patient. It is not unusual for attendants to recommend a certain dosage or increased dosage. Such recommendations are often accepted by the physician without having examined the patient. Further, when dealing with an especially disturbed patient, attendants can obtain additional medication by submitting appropriate forms to the pharmacy when there is no physician available. Also, drugs are at times prescribed to be given PRN, or “as necessary.” When this is done, an attendant may request medication without review by the authorizing physician. (Stips. 282-91.) At times, a patient may, by request, have his dosage increased. Nonetheless, patients are generally not given the opportunity to refuse psychotropic drugs, although roughly 85% of the patients are capable of rationally deciding whether to consent to their use. Indeed, they often are not even aware of the type of drug administered, the reasons why it is prescribed, or the risks associated with its use. B. Psychotropic Drugs and Their Effects The term psychotropic, or “mood altering” drug describes several categories of major tranquilizers (also called antipsychotic or neuroleptic drugs), antianxiety drugs (minor tranquilizers), antidepressants, sedatives (e. g, barbituates), and hypnotics. None of the psychotropic drugs cures mental illness, but each category of drugs serves a separate function, and each produces distinct side effects and risk associated with its usage. The most relied on class of psychotropics (at least at LSH) are the neuroleptics, especially, as earlier mentioned, thorazine. It is this class of drugs on which the Court will focus its attention. Though there appears to be no generally accepted theory that explains the biochemical manner in which the drugs work, the beneficial effects of antipsychotic drugs are on thought processes and the brain’s ability to sort out and integrate perceptions and memory. That is, they stabilize and blunt thought processes. For this reason they are used most often in the treatment of schizophrenia, see Eisenberg, Psychiatric Intervention, 229 Scientific Am. 116 (Sept. 1973); Kinross-Wright, The Current Status of Phenothiazines, 200 J.A.M.A. 461 (1976). They are also used for treatment of non-schizophrenic conditions, but recent studies have questioned their use in such cases. See, e. g., Gunderson, Drugs and Psychosocial Treatment of Schizophrenia Revisited, Dec. 1977 Psychiatry Digest 25. Though this Court is in no position to assess the claims that have been averred as to the benefits of the drugs, it can at least be said that psychotropic drugs are an effective method of treating schizophrenic symptoms, and may thus enable patients to benefit from other types of therapy. Accepting as true the general effectiveness of psychotropic drugs, it is nonetheless clear that they may not be helpful in every case. Further, there is at present neither an accurate method of predicting how a patient will react to a particular drug, Plot-kin, Limiting the Therapeutic Orgy: Mental Patients’ Right to Refuse Treatment, 72 Nw.U.L.Rev. 461, 475 (1977), nor any accepted criteria for deciding what drug within a particular class and in what amount to prescribe. Id. Most disturbing, however, is that all antipsychotic drugs can cause side effects which are “as varied and serious as any pharmaceuticals approved for clinical use in the United States.” Gaughan & LaRue, The Right of a Mental Patient to Refuse Antipsychotic Drugs in an Institution, 4 Law & Psych. Rev. 43, 51 (1978). First, psychotropic drugs can cause a number of muscular side effects (extra pyramidal symptoms). Such side effects take a number of forms. In some patients, psychotropic drugs act as a sedative, and, as some have observed, this effect is one of the most noticed by visitors to mental institutions. Davis & Cole, Antipsychotic Drugs, in 5 American Handbook of Psychiatry, 441, 461 (S. Auerti 2nd ed. 1975). Though the extent of drowsiness may vary, it may lead to “severe distress” as a consequence of the patient’s desire to feel “wide awake” and “to think more clearly.” Gaughan & La-Rue, The Right of a Mental Patient to Refuse Antipsychotic Drugs in an Institution, 4 Law & Psych. Rev. 43, 51 (1978). In other patients, the drugs may have just the opposite effect (akathesia). That is, the patient may experience the inability to sit still, or an irresistible desire to keep walking or tapping the feet. Zander, Prolixin Decanoate: A Review of the Research, in 2 Mental Disability L.Rep. 37 (1977); Crane, Clinical Psychopharmacology in its 20th Year, 181 Science 124 (1973). Kendler, A Medical Student’s Experience with Akathesia, 133 AmJ.Psych. 454 (1976). Still other patients may suffer from side effects which mimic those of Parkinson’s disease (Parkinsonisms). Such symptoms include a rigidity, a musk-like face, tremors, drooling, and a “ill-rilling” motion with one or both hands. Kline & Angst, Side Effects of Psychotropic Drugs, 5 Psychiatric Annals 444, 452 (1975). All of these muscular side effects disappear when the medication is discontinued and can be treated with antiparkinsonian drugs, though such drugs have their own side effects. Gaughan & LaRue, The Right of a Mental Patient to Refuse Antipsychotic Drugs in an Institution, 4 Law & Psych.Rev. 43, 52 (1978). Secondly, psychotropic drugs can cause a number of nonmuscular side effects, including blurred vision, dry mouth and throat, weight gain, dizziness, fainting, low blood pressure, depression, and constipation. Denber, Tranquilizers in Psychiatry, in Comprehensive Textbook of Psychiatry 1262 (A. Freedman & H. Kaplan eds. 1967); Hollister, Drug Therapy: Mental Disorders-Antipsychotic and Antimaniac Drugs, 286 New Eng.J.Med. 984 (1972). Less frequent nonmuscular side effects include skin rash and skin discoloration, cardiovascular changes, and, on occasion, sudden death. See Plotkin, Limiting the Therapeutic Orgy: Mental Patients’ Right to Refuse Treatment, 72 Nw.U.L.Rev. 461, 476 (1977). These effects too are thought to be temporary, and often tend to diminish after a few weeks. Finally, psychotropic drugs can cause a condition called tardive dyskinesia. This condition, which poses the most serious threat to the patient, is characterized by certain involuntary muscle movements. In most cases, it causes the muscles to produce continual involuntary chewing and lip smacking motions and facial contortions. There may also be involuntary movement of the fingers, hands, legs, and pelvic area. In its most progressive state, the condition interferes with all motor activity, making for instance, speech incomprehensible and breathing and swallowing extremely difficult. Sooner, et al, Tardive Dyskinesia and Informed Consent, March 1978 Psychosomatics 173; Special Section: Tardive Dyskinesia, 134 Am.J.Psych. 756 (1977); Plot-kin, Limiting the Therapeutic Orgy: Mental Patients’ Right to Refuse Treatment, 72 Nw.U.L.Rev. 461, 476-77 (1977). (Symptoms “may be grotesque and socially objectionable, resulting in considerable shame and embarrassment to the victim and his or her family.”) The condition is the subject of much concern for a number of reasons. First, its symptoms are often not manifested until late in the course of treatment and sometimes do not appear until the drug has been discontinued. Id. Secondly, the condition is thought to be permanent. Thirdly, though the condition may be associated with length of drug usage, dosage level, and the age and sex of the patient, the condition is not understood and it is impossible to predict who will be a victim. Zander, Prolixin Decanoate: A Review of the Research, in 2 Mental Disability L.Rep. 37 (1977); Gaughan & LaRue, The Right of a Mental Patient to Refuse Antipsychotic Drugs in an Institution, 4 Law & Psych.Rev. 43, 52 (1978). Finally, the condition is fairly widespread. One recent study indicates that the condition affects 50% to 56% of chronically hospitalized schizophrenics, while 41% of all outpatients are affected. Sooner, et al., Tardive Dyskinesia and Informed Consent, March 1978 Psychosomatics 173. II. Conclusions of Law: A number of courts have held or suggested that persons confined in the State’s custody have a constitutional right to refuse “treatment,” at least in some situations. See, e. g., Mackey v. Procunier, 477 F.2d 877 (9th Cir. 1973); Knecht v. Gillman, 488 F.2d 1136 (8th Cir. 1973); Scott v. Plante, 532 F.2d 939 (3rd Cir. 1976); Bell v. Wayne County General Hospital, 384 F.Supp. 1085, 1100 (E.D.Mich.1974) (three-judge court); Rennie v. Klein, 462 F.Supp. 1131 (D.N.J.1978); Rogers v. Okin, 478 F.Supp. 1342 (D.Mass.1979). With these courts, this Court notes at the outset its essential agreement with respect to both the existence of the right and the factors which determine its shape. But unlike some of the courts which have derived the right to refuse treatment from the First Amendment, the Eighth Amendment, as well as the “penumbras” and “shadows” of these and the Third, Fourth, and Fifth Amendments, this Court believes the source of the right can best be understood as substantive due process, or phrased differently, as an aspect of “liberty” guaranteed by the due process clause of the Fourteenth Amendment. The desire to pigeon-hole individual liberties in some specific provision of the Bill of Rights is understandable. As the Supreme Court recently stated: [tjhere are risks when the judicial branch gives enhanced protection to certain substantive liberties without the guidance of the more specific provisions of the Bill of Rights. As the history of the Lochner [Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937] era demonstrates, there is reason for concern least the only limits to such judicial intervention become the predilections of those who happen to be Members of this Court. Moore v. City of East Cleveland, 431 U.S. 494, 502, 97 S.Ct. 1932, 1937, 52 L.Ed.2d 531 (1977). It is, however, clear that the framers of the Constitution believed that “the full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution.” Moore v. City of East Cleveland, 431 U.S. at 502, 97 S.Ct. at 1937, quoting Poe v. Ullman, 367 U.S. 497, 543, 81 S.Ct. 1752, 1776, 6 L.Ed.2d 989 (1961) (Harlan, J., dissenting). See also, Mahoning Women’s Center v. Hunter, 610 F.2d 456 (6th Cir. 1979); 3 J. Story, Commentaries on the Constitution of the United States 715-16 (1833); L. Tribe, American Constitutional Law § 11-3 (1978); Shattuck, The True Meaning of the Term “Liberty” in the Clauses in the Federal and State Constitutions which Protect “Life, Liberty, and Property”, 4 Harv.L.Rev. 365 (1891). The difficult question then is not whether due process is a source of rights not otherwise enumerated in the Constitution; it is instead whether a particular claim of right is entitled to constitutional protection under the due process clause. As suggested, it is not enough that a particular judge deems the right “fundamental.” There is nothing unique about constitutional adjudication which permits a judge to ignore the common law tradition that judicial decisions must be reconcilable with those principles fixed by the decisions which precede them. As such, the determination of whether a right is “fundamental” must necessarily begin with an examination of “the teachings of history [and] the recognition of the basic values that underlie our society.” Moore v. City of East Cleveland, supra, 431 U.S. at 503, 97 S.Ct. at 1937. See also, id. at 503 n. 10, 503-04 n. 11, 97 S.Ct. at 1937 nn. 10, 11; Smith v. Organization of Foster Families, 431 U.S. 816, 842, 97 S.Ct. 2094, 2108, 53 L.Ed.2d 14 (1977); Ingraham v. Wright, 430 U.S. 651, 672-74, 97 S.Ct. 1401, 1413-1414, 51 L.Ed.2d 711 (1977); Roe v. Wade, 410 U.S. 113, 152, 93 S.Ct. 705, 726, 35 L.Ed.2d 147 (1973). A. Plaintiffs have suggested that compulsory treatment, as defined by its administration at LSH, implicates three more or less distinct values recognized by the law. First, compulsory treatment invades a patient’s interest in his “bodily integrity" and “personal dignity.” Second, compulsory treatment denies the patient’s interest in independence in making decisions which are important to the patient. Third, compulsory treatment invades the patient’s interest in being able to think and to communicate freely. Each of these interests may not in every situation be equally affected nor may they outweigh in every situation the legitimate interests of the State. For present purposes, however, the important point is that a compulsory drug program does touch in some degree each of these interests and, further, that each of these interests has long been recognized by English and American Law. In the history of the common law, there is perhaps no right which is older than a person’s right to be free from unwarranted personal contact. As early as the middle of the thirteenth century, English law, through the writ of trespass vi et armis, provided a method of monetary recovery for unpermitted contacts with the person. F. W. Maitland, The Forms of Action at Common Law 40, 43, 53 (1971 ed.). See generally, Dreiser, The Development of Principle in Trespass, 27 Yale L.J. 220 (1917); Woodbine, The Origins of the Action of Trespass, 33 Yale L.J. 799 (1924). Originally, recovery depended upon there having been some act of violence, but at a very early time the action required only a “slight” force and did not depend upon whether the touching was done intentionally, negligently, or even accidently. F. W. Maitland, The Forms of Action at Common Law at 43; 3 W. S. Holdsworth, A History of English Law 376 (1927 ed.). And by the fourteenth century, it was held that trespass would be for any attempted “battery” which had failed to take place. 8 W. S. Holdsworth, A History of English Law 424 (1927 ed.). To be sure, the modern law of battery grew out of a criminal action designed primarily to protect the king’s peace. Nonetheless, the “element of personal indignity involved always [was] given considerable weight.” W. Prosser, The Law of Torts § 9 at 35 (4th ed. 1971). Indeed, as the action developed, the wrong prevented was thought primarily to be “in the violation of the person or the breaking of the close.” F. Harper, A Treatise on the Law of Torts § 14 at 36 (1933 ed.). It is this interest in the physical security of the person and integrity of the body upon which the modern tort of battery is premised. Restatement of Torts §§ 13, 18 (1934); Restatement (Second) of Torts §§ 13, 18, 19 (1965); Cole v. Turner, 6 Mod.Rep. 149, 87 Eng.Rep. 907 (1704). As such, liability based on battery is not denied because the plaintiff was not aware of the touching. See, e. g, Vosburg v. Putney, 80 Wis. 523, 50 N.W. 403 (1891); Mohr.v. Williams, 95 Minn. 261,104 N.W. 12 (1905); Gregoris v. Manos, 35 Ohio L.Abs. 279, 40 N.E.2d 466 (1942). Or the touching was beneficial or otherwise harmless. See, e. g., Lacey v. Laird, 166 Ohio St. 12, 139 N.E.2d 25 (1956). But it is not only the law of torts which recognized this interest in the physical security of one’s body. It is referred to in the 39th Article of Magna Carta and Blackstone identified “the right of personal security” as one of the three elements of “liberty” guaranteed to all Englishmen. Shatluck, The True Meaning of the Term-“Liberty” * * *, 4 Harv.L.Rev. at 373.; Our own constitutional history contains many references to the importance of the “inviolability of the person.” As Justice Gray expressed in Union Pacific Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734 (1891): [n]o right is held more sacred, or is more carefully guarded * * * than the right of every individual to the possession and control of his own person, free from all restraints on interference of others, unless by clear and unquestionable authority of law. See also, id. at 252, 11 S.Ct. at 1001; Munn v. Illinois, 94 U.S. 113, 142, 24 L.Ed. 77 (1876) (Field, J., dissenting). More specifically, a respect for bodily integrity, “as the major locus of separation between the individual and world,” L. Tribe, American Constitutional Law at 913, underlies the specific constitutional guarantees of the Fourth Amendment, see, e. g., Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746 (1886); Katz v. United States, 389 U.S. 347, 351-52, 88 S.Ct. 507, 511-512, 19 L.Ed.2d 576 (1967); Schmerber v. California, 384 U.S. 757, 772, 86 S.Ct. 1826,1836,16 L.Ed.2d 908 (1966); Sibron v. New York, 392 U.S. 40, 66, 88 S.Ct. 1889, 1904, 20 L.Ed.2d 917 (1968); the Eighth Amendment, United States v. Georvassilis, 498 F.2d 883 (6th Cir. 1974); Aulds v. Foster, 484 F.2d 945 (5th Cir. 1973); cf. Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); as well as the due process clauses of the Fifth and Fourteenth Amendments. See, e. g., Rochin v. California, 342 U.S. 165, 172, 174, 72 S.Ct. 205, 209-211, 96 L.Ed. 183 (1952); Ingraham v. Wright, 430 U.S. 651, 672-74, 97 S.Ct. 1401, 1413-1414, 51 L.Ed.2d 711 (1977). Closely related to a person’s interest in body is his interest in making decisions about his body. In the law of torts, this interest is reflected in the concept of consent. For example, in the context of medical treatment, treatment by a physician in a non-emergency that is rendered without the patient’s informed consent, or exceeds the consent given, is actionable as a battery. See, e. g., Mohr v. Williams, 95 Minn. 261, 104 N.W. 12 (1905); Pratt v. Davis, 224 Ill. 300, 79 N.E. 562 (1906); Rolater v. Strain, 39 Okl. 572, 137 P. 96 (1913); Schloendorff v. Society of New York Hospitals, 211 N.Y. 125, 105 N.E. 92 (1914) (Cardozo, J.); Wells v. Van Nort, 100 Ohio St. 101, 125 N.E. 910 (1919). The principle which supports the doctrine of informed consent is that only the patient has the right to weigh the risks attending the particular treatment and decide for himself what course of action is best suited for him. The very foundation of the doctrine of [informed consent] is every man’s right to forego treatment or even cure if it entails what for him are intolerable consequences or risks, however warped or perverted his sense of values may be in the eyes of the medical profession, or even of the community, so long as any distortion falls short of what the law regards as incompetency. Individual freedom here is guaranteed only if people are given the right to make choices which would generally be regarded as foolish. 2 F. Harper & F. James, Jr., The Law of Torts 61 (1968 Supp.) (emphasis in original). See also, Cobbs v. Grant, 8 Cal.3rd 229, 104 Cal.Rptr. 505, 514, 502 P.2d 1, 10 (1972); Schloendorff v. Society of New York Hospitals, supra, 105 N.E. at 93. This rationale applies equally to a number of decisions which a person is constitutionally entitled to make. It is not the State, acting in what it deems to be the individual’s best interests, which decides whether a criminal defendant will or will not be represented by a lawyer. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The defendant, and not his lawyer or the State, will bear the personal consequences of a conviction. It is, therefore, the defendant who must be free personally to decide whether in this particular case counsel is to his advantage. And although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of “that respect for the individual which is the lifeblood of the law.” Id. at 834, 95 S.Ct. at 2541, quoting Illinois v. Allen, 397 U.S. 337, 350-51, 90 S.Ct. 1057, 1064-1065, 25 L.Ed.2d 353 (1970) (Brennan, J., concurring). Neither a lawyer or the State can make the decision for the criminal defendant whether to testify or not in his own defense. See Harris v. New York, 401 U.S. 222, 225, 91 S.Ct. 643, 645, 28 L.Ed.2d 1 (1971). Similarly, where the option is available, the criminal defendant must decide whether his trial will be before the court or before a jury, Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1942); United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968). And it is the criminal defendant who must decide whether, by accepting a plea of guilty, there will be a trial at all. McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969); Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976); Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977). It not only is criminal defendants whose “interest in making certain kinds of personal decisions” is constitutionally protected. Whalen v. Roe, 429 U.S. 589, 599-600, 97 S.Ct. 869, 876-877, 51 L.Ed.2d 64 (1977). See, e.g., Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973); Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); Allgeyer v. Louisiana; 165 U.S. 578, 17 S.Ct. 427, 41 L.Ed. 832 (1897). To be sure, these decisions may not require a constitutional right to refuse psychotropic drugs. But each reaffirms the principle that the constitution recognizes the individual’s right to make intimate decisions which fundamentally affect the individual. Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S.Ct. 1029, 1038, 31 L.Ed.2d 349 (1972). Aside from a person’s interest in “physical security” and in making decisions about how his body will be used or abused, the forced administration of psychotropic drugs implicates a person’s interest in being able to think and to communicate freely. The notion that the State cannot punish or deprive a person because of his thought or beliefs has long been beyond dispute. “The fantasies of a drug addict are his own, and beyond the reach of the state.” Paris Adult Theatre I v. Slaton, 413 U.S. 49, 67, 93 S.Ct. 2628, 2641, 37 L.Ed.2d 446 (1973). Though it is at least arguable that “treatment” at LSH has on occasion been administered for no purpose other than to punish inmates for their thoughts, the inmates’ principal interest affected in the present case arises not from the State’s attempts to punish thoughts but its attempts to use treatment as a means of controlling thought, either by inhibiting an inmate’s ability to think or by coercing acceptance of particular thoughts and beliefs. It has been suggested that the First Amendment guarantee of freedom of speech protects, in addition to a person’s interest in communicating, a person’s interest in thinking without regard to the subject matter of his thoughts. See, e.g., Mackey v. Procunier, 477 F.2d 877 (9th Cir. 1973); Scott v. Plante, 532 F.2d 939 (3rd Cir. 1976); Karmowitz v. Department of Mental Health, Civil No. 73-19434-AW (Wayne County Mich.Cir.Ct.1973), reprinted in 2 Prison L.Rptr. 443 (1973); Shapiro, Legislating the Control of Behavior Control: Autonomy and the Coercive Use of Organic Therapies, 47 S.Cal.L.Rev. 237 (1974). Under this view, government action which directly affects the mental processes would be unconstitutional under the First Amendment. There are decisions by the Supreme Court which would support this view. See, e.g., Stanley v. Georgia, 394 U.S. 557,565,89 S.Ct. 1243,1248, 22 L.Ed.2d 542 (1964); Griswold v. Connecticut, 381 U.S. 479,482, 85 S.Ct. 1678,1680,14 L.Ed.2d 510 (1965); United States v. Reidel, 402 U.S. 351,359,91 S.Ct. 1410,1414, 28 L.Ed.2d 813 (1971) (Harlan, J., concurring). But this Court need not rest the protection of a person’s interest in being free to use his mind as he so desires on the First Amendment. It is enough to observe that “the power to control men’s minds” is “wholly inconsistent” not only with the “philosophy of the first amendment but with virtually any concept of liberty.” Stanley v. Georgia, supra, 394 U.S. at 565-66, 89 S.Ct. at 1248. “[I]n a free society one’s beliefs should be shaped by his mind and his conscience rather than coerced by the State.” Abood v. Detroit Board of Education, 431 U.S. 209,235,97 S.Ct. 1782,1799, 52 L.Ed.2d 261 (1977). Indeed, the State’s power to control the minds of its subjects is the hallmark of those “totalitarian ideologies we profess to hate * * *.” Sobell v. Reed, 327 F.Supp. 1294, 1305 (S.D.N.Y.1971) B. Recognition of the interests discussed in the preceding section as fundamental and worthy of constitutional protection does not, ipso facto, mean that plaintiffs have a right to refuse psychotropic medication. Whether any such right exists, and if so, its limitations can be determined only after identifying the legitimate interests of the State and then balancing these interests against the interests of the plaintiffs. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977). The State advances various interests as weighing against recognition of a constitutional right to refuse psychotropic medication. These interests are discussed seriatim. The State suggests that forced medication may at times be necessary to protect a patient from harming himself or others. That the State has a legitimate interest in protecting patients at LSH is beyond question. Addington v. Texas, 441 U.S. 418, 426, 99 S.Ct. 1804, 1809, 60 L.Ed.2d 323 (1979). See also, Runnels v. Rosendale, 499 F.2d 733, 735 (9th Cir. 1974); Goodman v. Parwatikar, 570 F.2d 801, 804 (8th Cir. 1978) (State has constitutional obligation to protect prisoners in its custody against assaults by other prisoners). As the Supreme Court long ago stated in Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905): There is, of course, a sphere within which the individual may assert the supremacy of his own will and rightfully dispute the authority of any human gov