[00:00:08] Speaker 04:
Mr. Connolly, Ms. Bustos, you will each have 15 minutes for your argument, and you may begin when you're ready.

[00:00:32] Speaker 02:
Good morning, Your Honors. May it please the Court. My name is Thomas A. Connolly. I represent Brooke Siena and her mother, Christine, appellants here and plaintiffs below. This case is about whether the state acting through a psychiatrist found by the district court to be a state actor could administer antipsychotic medication to a nonverbal autistic child without parental informed consent or a specific court order authorizing that treatment.

[00:00:58] Speaker 04:
Why does there need to be a specific court order authorizing this treatment when there was a court order allowing for the care of Brooke and also that court order for psychiatric treatment, if you look back to the statute that's referenced, covers the administration of various medications, including the one that was ultimately administered.

[00:01:19] Speaker 02:
Your Honor, first of all, the court order making Brooke a temporary ward of the court and assigning her to the custody of DCS was made only on probable cause.

[00:01:35] Speaker 02:
based on the verified allegations of the complaint.

[00:01:37] Speaker 00:
We're not talking about the custody. We're talking about the order that says NBCS may obtain medical treatment for acute psychiatric care, I think it says. And the statute says treatment for acute psychiatric care includes stabilization medication. So I'm looking at this from the perspective of Dr. MLAK, however you pronounce his name.

[00:02:02] Speaker 01:
I pronounce it as Malak.

[00:02:03] Speaker 00:
Malak, okay.

[00:02:04] Speaker 01:
It might be Malak.

[00:02:06] Speaker 00:
Dr. Malak.

[00:02:07] Speaker 01:
Your Honor, let me address that.

[00:02:08] Speaker 00:
He's got a court order that says you could administer stabilization medication. Everybody agrees this is stabilization medication. It's listed in the group of stabilization medications that DCS puts out that people can give.

[00:02:26] Speaker 02:
Your Honor, the problem with that order is, First of all, nobody disputes that Brooke needed care. Her mother herself has put her inpatient before.

[00:02:36] Speaker 04:
And so there's no... And he had filled out forms to put her inpatient at Aurora, right? As I understand what happened is she followed the transport from Abrazo to Aurora, correct? And then I think the complaint alleges that she ended up filling out the paperwork to admit her daughter to Aurora, correct?

[00:02:56] Speaker 02:
It may be true. I know that her mother has... put her inpatient before in the past. She was inpatient at St. Luke's. No, but this record is clear. But nobody disputes that Brooke needed care. There's no dispute that the mother didn't even contest that motion.

[00:03:15] Speaker 04:
Counsel, what's the problem with this order that I think you were starting to talk about?

[00:03:21] Speaker 02:
The September 4th order.

[00:03:22] Speaker 04:
Well, let's look at the August 31st order first because that's the first order that was entered.

[00:03:29] Speaker 02:
Well, the August 31st order was only – that was the date of DCS's motion for inpatient care was August 30th, and then there was the August 31st order, and it was a 72-hour order. Okay. There was no – the court did not consider the question of antipsychotic medications such as Haldol. It was just a general order allowing under the statute, as you said, under ARS 271-8C, allowing for inpatient acute psychiatric care.

[00:04:13] Speaker 00:
Go on when you read the statute.

[00:04:15] Speaker 02:
Yeah.

[00:04:15] Speaker 00:
Psychiatric care includes stabilization medication.

[00:04:19] Speaker 02:
Absolutely, Your Honor. That specific subsection, 271-8C, includes medication stabilization. That is ordered as a treatment category. But it's not as a sufficient process for a forced medication of as consequential a psychotic medication as Haldol.

[00:04:39] Speaker 04:
When do you allege that the first administration of Haldol occurred?

[00:04:44] Speaker 02:
It occurred on September 7th, two weeks after Brooke had already been at Aurora.

[00:04:51] Speaker 03:
So I have a question about that. Okay.

[00:04:55] Speaker 03:
2ER121 is an informed consent form that shows consent was received from DCS for the administration of Haldol.

[00:05:11] Speaker 03:
What is the significance of that?

[00:05:15] Speaker 02:
Well, the primary significance is that DCS's consent was nowhere near informed. That consent was received after hours. It was a nurse on Dr. Malak's staff who contacted DCS hotline after hours, spoke to an after hours operator who did not know Brooke Siena, did not have any clue about her medical history, including the history.

[00:05:40] Speaker 04:
Let's just assume for a moment, counsel, that I agree with you that this document does not provide sufficient consent.

[00:05:50] Speaker 04:
for the administration of the medication. What I'm struggling to understand is you don't need this informed, that Aurora and Dr. Malak was relying on the fact that there had been a court order that was issued by the Superior Court on, I think it was the September 4th, the 2nd. So there was one on the 31st for the 72 hours, and then there was a subsequent order issued that was issued by the court prior to the administration of the drug on September 7th, which is the date that you allege the first dose was administered, correct?

[00:06:26] Speaker 04:
Correct. So how do you get past the fact that there was a court order in place?

[00:06:33] Speaker 02:
Let's go back to DCS's motion.

[00:06:37] Speaker 02:
DCS's motion seeking authorization for inpatient care, first of all, was not contested by the mother. Everybody agreed she needed care. DCS By the statute, it's required to attach to their motion a report from the doctor of the facility explaining why inpatient care was necessary. In that report, Dr. Malak included his plan for treatment. And buried in that plan is his plan to use, his stated intention, to medicate Brooke with Thorazine.

[00:07:12] Speaker 02:
Thorazine is a much... lower potency, much lower risk profile drug than Haldol. Haldol is the strongest potency, the highest risk factor. Our plaintiff's expert said that you'd never use Haldol with adolescents because of its potency and its risk factor.

[00:07:35] Speaker 00:
Well, that may set up a malpractice case. No, but let me get... No, I get to talk. I know, Your Honor. I'm sorry. I just wanted to get to the... Just the way it works.

[00:07:46] Speaker 00:
But I'm focusing on only defendant in this case. You may have a great case against DCS. You're pursuing it elsewhere.

[00:07:53] Speaker 02:
We've settled it all.

[00:07:54] Speaker 00:
Yeah, okay, and you may have got a lot of money on it. I don't need to know.

[00:07:58] Speaker 00:
Talk about Dr. Malak here. There's a court order which I read on its face as saying you can give stabilization medication. And if you call DCS and get their consent, and he does. So what did he do wrong?

[00:08:14] Speaker 00:
What did he do wrong, not DCS?

[00:08:16] Speaker 02:
Right, what did he do wrong? The problem here is the order only allows for treatment in general. It doesn't allow the bureaucratic language of medication stabilization does not encompass such a critical antipsychotic medication.

[00:08:34] Speaker 00:
So if I disagree with you on reading the order and I read the order on its face as allowing him to do this with DCS's consent, what did he do wrong?

[00:08:45] Speaker 02:
He failed to get informed consent. He knew he needed consent.

[00:08:51] Speaker 04:
What case can you point to for the proposition that he needed informed consent from the mother in light of the court order that was in place at the time that the drug was administered?

[00:09:02] Speaker 02:
I would point to Washington v. Harper as a case that says an informed process is necessary, an informed due process situation.

[00:09:14] Speaker 03:
But there was due process leading up to the court order that approved inpatient psychiatric acute care.

[00:09:25] Speaker 03:
So if you go from that premise, why didn't the court order allowing for inpatient psychiatric acute care combined with the statute that defines that term, why wasn't that enough to permit Dr. Malak to do what he did.

[00:09:47] Speaker 02:
Because of the nature of the care that he was looking to administer. He himself recognized that he needed to get additional consent.

[00:09:56] Speaker 02:
He knew he had to go beyond that.

[00:10:00] Speaker 03:
Well, I guess what I understood Judge Desai's question to be, he may have thought that, but is that true as a matter of law?

[00:10:08] Speaker 02:
I suggest that it is, Your Honor, based on Washington v. Harper, based on Benavides.

[00:10:14] Speaker 02:
you know, one of this district's cases.

[00:10:17] Speaker 04:
And I think also based on... Benavides talks about sort of the context of physical examinations, that there needs to be the opportunity to be present after there is notice, consent, or a court order, then the opportunity to be present. Right. There was no, there's no claim in this case, nor did Brooke's mother request to be present.

[00:10:42] Speaker 04:
I think you're sort of Benavides, I don't think really does much work for you in this case because it's not a case about informed consent. It's a case about having an opportunity to be present for the examination after there's already consent or a court order. And I don't read the complaint or any of the arguments you're making in this case to be one for a request to be present.

[00:11:05] Speaker 02:
No, that's not the complaint here.

[00:11:09] Speaker 00:
Your complaint is that you didn't consent.

[00:11:12] Speaker 02:
The complaint is that there was no due process sufficient to administer such a consequential and high-potency drug to a minor.

[00:11:22] Speaker 00:
Let me ask the question differently. If Christina, I think, or Christine, if they called her up and she had consented, was any additional process needed?

[00:11:32] Speaker 02:
No. If she consented, there was no additional process needed.

[00:11:35] Speaker 00:
The complaint is that she wasn't called up and asked to consent, correct?

[00:11:40] Speaker 02:
No, that's not the complaint. Because there was eventually a conversation between Dr. Malak and the mother, which occurred on September 12th.

[00:11:48] Speaker 00:
And she objected to... Now I'm completely lost. If your complaint is not that your client, Christine, wasn't asked to consent to this, then I have no idea what your complaint is.

[00:12:01] Speaker 02:
The complaint is that... This is not a malpractice case.

[00:12:05] Speaker 02:
Well, there's a state claim. I know, but... And you may have a good argument...

[00:12:11] Speaker 04:
for the fact that there was medication that is administered that was below the standard of care. I am willing to grant you that Washington v. Harper, which occurs in sort of the prison context and some of these other cases that we have, Mann, et cetera, that occur in the physical examination context, require something. They require some matter of notice and consent or a court order. But here there is a court order. And what happened... Sir, on September 12th, with respect to the communication between Dr. Malak and Christine, is precisely what the court order required, which is for there to be some communication with the parent that she would not have the opportunity to dictate, ultimately, the care, but that the doctor would take that into consideration, which is what he did.

[00:13:00] Speaker 02:
You're conflating two different orders, Your Honor. The order you just described where required input from the mother, that comes on October 17th, well after the Haldol...

[00:13:11] Speaker 04:
Okay, so you're right. So Dr. Malak is having these communications with the mother even before there's a court order requiring it, but he's doing it. But he also has a court order in place that is authorizing this psychiatric care.

[00:13:25] Speaker 02:
He didn't even believe that the court order that existed was sufficient for him to administer Haldol. He reached out to the department to get consent.

[00:13:34] Speaker 00:
Because the court order required consent from DCS, did it not?

[00:13:41] Speaker 02:
Not if – if your honors, if this panel believes that the September 4th order was sufficient to administer Haldol, then there was no reason for Dr. Malak to go back and ask for consent.

[00:13:54] Speaker 03:
Well, he could be being extra careful, and there's nothing that says that if you're extra careful, you get into worse trouble than if you weren't. I don't – excuse me – I don't read the original – order approving inpatient psychiatric acute care services as requiring advance notice or advance consent from DCS.

[00:14:26] Speaker 02:
I think it all comes down to Washington v. Harper. You can't go administering an antipsychotic drug which plays with your brain's chemical balance without a more rigorous due process.

[00:14:41] Speaker 03:
Well, the due process led up to this order. There are several kinds of due process, but this order wasn't just written by the court with no input from anybody.

[00:14:55] Speaker 02:
I understand that, Your Honor. I'm running out of time, and I did intend to reserve some time for rebuttal. Let me just say before I sit down that...

[00:15:06] Speaker 02:
Even if the court doesn't want to expand the constitutional issue, it can rule on a more narrow basis that the district court exceeded its bounds by deciding factual questions in Dr. Malak's favor instead of finding them to be questions that ought to be heard in a trial setting rather than a summary judgment setting. And I'd like to reserve...

[00:15:34] Speaker 04:
You have no time left, but I'll put two minutes on the clock for you.

[00:15:37] Speaker 02:
Thank you.

[00:15:52] Speaker 05:
May it please the court, Rita Bustos on behalf of Dr. Malak. This case asks whether a psychiatrist violated the Constitution and by treating a severely autistic nonverbal teenager who is punching other patients, inducing seizures, and requiring physical restraint after the juvenile court approved inpatient psychiatric acute services.

[00:16:13] Speaker 04:
So this is in a situation where there was sort of an emergency. In Washington v. Harper, we talk about the danger to himself or others or the sort of really acute circumstance. In this case, we had a minor. that had been taken to the hospital where I think the acute situation was addressed. She was stabilized at the hospital and then transported to the inpatient facility at Aurora, where I think your client worked, and in fact was stable enough that there was no administration of this particular drug that's being contested for a number of days after she had been admitted.

[00:16:51] Speaker 04:
So you would agree with me that there isn't what you're talking about, the punching, the kicking, the restraints, et cetera, that wasn't the basis for the care that was provided.

[00:17:05] Speaker 05:
Yes, there was no emergency situation, Your Honor. That's absolutely correct. And let's talk about Washington v. Harper, which is where a prison inmate challenged the involuntary administration of antipsychotic medication. And the Supreme Court in that held that due process permits this involuntary treatment Right. If there's a serious mental illness, is he the dangerous to himself or others? And the treatment is in his medical interest. And the Supreme Court in that case upheld an administrative hearing before a committee of medical professionals, not a judge, as constitutionally significant.

[00:17:36] Speaker 05:
But you don't really even need that hearing. There was a court order in the case.

[00:17:39] Speaker 04:
Exactly.

[00:17:40] Speaker 05:
Exactly. And that's exactly the point that I was getting to, Your Honor. And in this case, there was actually even more process than what was found sufficient evidence. in the Harper case. In this case, we do have, as pointed out by your honors, we have four escalating hearings by the juvenile court. On June 27, 2018, they ordered Brooke committed to the legal care, custody, and control of DCS, and critically, they expressly authorized DCS to consent to evaluation and treatment for medical care upon recommendation of the health care provider.

[00:18:13] Speaker 04:
Do you have any of the documents that were signed by Brooke Christine, the mother, at the time that she brought or admitted her daughter to Aurora? I haven't been able to find those in the record. I understand from the complaint that she was involved in, you know, filling out paperwork. And I'm just curious to know, sort of at the facility, whether that paperwork includes some broad consent. So putting aside for a moment the fact that there's a court order eventually, Or this care.

[00:18:47] Speaker 04:
Can you talk to me at all about the documents that were completed by the plaintiff herself?

[00:18:52] Speaker 05:
Yeah. Unfortunately, Your Honor, I don't know specifically in the record where that medical paperwork is for the admission to the Aurora facility.

[00:19:00] Speaker 04:
Would it typically include consent for care or for the administration of medication?

[00:19:06] Speaker 05:
Typically, paperwork to admit to a mental health facility like Aurora would include some sort of.

[00:19:12] Speaker 00:
But you don't know if they're in the record or not.

[00:19:14] Speaker 05:
I don't know.

[00:19:15] Speaker 00:
I mean, one thing to say you don't know where they are in the record. I guess we're trying to figure out whether you have any – you can help us by telling us whether they are in the record.

[00:19:23] Speaker 05:
You know, I'm very – I apologize, Your Honor. That was not something that I was prepared to discuss, given the fact that we do have court orders in this case that provided DCS specifically the – you know, it provided DCS that they were able to – the custody by clear and convincing evidence – and they were able to make inpatient psychiatric acute care services for Brooke in this case.

[00:19:50] Speaker 04:
Well, DCS isn't – it's not enough to get DCS's consent. DCS is not – had temporary custody. The facility needed either consent of the parent, who still had some consent, or court order. You're not arguing that the DCS consent is enough. No, they needed a court order.

[00:20:07] Speaker 05:
Absolutely, Your Honor. There needed to be a court order. The court order provided DCS this authority to provide inpatient acute psychiatric services, which included medical stabilization. And that court order provided DCS the authority to provide the consent to administer this medical.

[00:20:26] Speaker 00:
I want to return to a point your friend made. Was Dr. Malak required by the court order to obtain DCS's consent before administering this medication, or could he have done so solely on the basis of the court order?

[00:20:43] Speaker 05:
Your Honor, I think he may have been able to do so solely on the basis of the court order, except that the court order provided this specific authority to DCS to provide.

[00:20:55] Speaker 00:
If it's that broad, I find it troublesome because you've been using Thorazine. It doesn't work. That's what the record shows. you want to escalate and do something higher. Is this just all left up to the judgment of the doctor under the court order, or doesn't he have to, doesn't he, if this girl weren't in the temporary custody of the state, there wouldn't be any doubt that you should try to get the parent's consent before administering the next drug.

[00:21:25] Speaker 00:
Whether or not that consent was given in the admission documents, we can't tell. So here we know they're in temporary custody of the state, It does seem to me you have to ask DCS for its consent to escalate here, don't you?

[00:21:39] Speaker 05:
Well, Your Honor, I would concede that because the factual circumstances in this case are such that Dr. Malak did get DCS's consent, then it's almost a moot point whether or not he actually needed to get that consent or not.

[00:21:55] Speaker 00:
So my next question is, how far does this order extend?

[00:22:01] Speaker 00:
I mean...

[00:22:03] Speaker 00:
One of the things that's potentially troublesome about dealing in this area is that maybe the doctor gives something he doesn't need to give and that had somebody been consulted or the court been consulted or the mother been given the opportunity to show up, she would have said, sure, I was fine with Thorazine, but not Haldol. So how far does the order extend? It surely can't authorize the administration of everything.

[00:22:37] Speaker 05:
Your Honor, the order would extend as much as what medication stabilization would require. And I think Your Honor himself pointed out that Halodol is one of the listed medications provided that can be provided for medication stabilization. And I agree there obviously would be some sort of limits to that. But in this case, that limit wasn't passed.

[00:23:03] Speaker 00:
So this takes me back to a question that I don't think we asked the other side, which is this.

[00:23:10] Speaker 00:
I understand why Dr. Malak in this circumstance could say, says stabilization medication. I called DCS. They said, fine. I'm aware of the DCS guidelines. It's listed there as a stabilization medication. But you don't raise a qualified immunity defense in this case.

[00:23:28] Speaker 05:
No, we did not raise a qualified immunity.

[00:23:30] Speaker 00:
The issue isn't whether or not he reasonably could have believed his actions were okay, but rather whether or not his actions were constitutional. Correct.

[00:23:42] Speaker 00:
I won't ask why you didn't raise the defense. So is our analysis a little bit different than whether he acted reasonably under the circumstances?

[00:23:54] Speaker 05:
Your Honor, no. I mean, the analysis here... specifically as to whether or not, and what plaintiff has argued, is that there was a constitutional violation of the parent's interest in the care, custody, and control of her child.

[00:24:12] Speaker 05:
And that's a fundamental liberty interest, but it's not absolute. And so what we need to look at here is courts have recognized that there are two circumstances in which the parental decision and the right to care, custody, and control specifically for medical decisions, may step aside. And the first is whether there's a formal hearing with a neutral adjudicator.

[00:24:35] Speaker 05:
You know, there has to be fundamentally fair procedures. And then second, whether there's emergency situation. And in this case, we have that first circumstance, right? We have the first circumstances where there was a neutral adjudicator providing fundamentally fair procedures. Here, there were four separate procedures.

[00:24:54] Speaker 04:
In what case would you have a...

[00:24:56] Speaker 04:
sort of base this decision on. Because as I've looked, and maybe I haven't found it, but I don't see that we have a case that arises specifically in the context of the administration of medication or care for minors when there is a psychiatric issue We have these cases that arise in the prison context, and we have these cases that arise in the medical examination context, which seems much more like an acute procedure, sort of a one-time event.

[00:25:29] Speaker 04:
So what case are you relying on or do you think we would rely on to sort of advance the argument that you're making?

[00:25:39] Speaker 05:
Okay. Well, Your Honor, I don't know if I can point to one specific case, but I can point to, you know, the cases which say that these fundamental rights are not absolute and including the Mueller case, and that interficials may interfere with these parental rights if the parents are provided with fundamentally fair procedures, which is the Keats case. And the courts, again, have recognized these two circumstances, which comes from the Pope case.

[00:26:06] Speaker 05:
So what this court needs to look at is whether or not there were fundamentally fair procedures. And then in order to look at that, we have to look at the Arizona authority and the Arizona statutory scheme here. The orders of the juvenile court followed Arizona's statutory framework, including ARS 8-821, where the juvenile court may authorize DCS to take temporary custody upon finding a probable cause. 8-824, the court has to hold a hearing to see whether continued custody is clearly necessary.

[00:26:40] Speaker 05:
And then under 8-272, inpatient psychiatric acute services require court approval by clear and convincing evidence, which is what happened here. So, again, we're looking, this court is looking at whether or not there were fundamentally fair procedures in order to impinge on the parent's fundamental right to the care, custody, and medical treatment decisions of their children, and then you have to look at the Arizona statutory scheme and what specifically happened here in the juvenile court to figure out whether or not these were fundamentally fair procedures.

[00:27:14] Speaker 05:
And they were. And what culminated in the September 4th juvenile order, which they found by clear and convincing evidence that Brooke was suffering from the mental disorder and was a danger to herself or others, and they said that inpatient acute psychiatric services were permitted, which include medication stabilization. And as Judge Horowitz points it out, we're looking at this from the perspective of Dr. Malak. He is a psychiatric provider at an acute care facility.

[00:27:47] Speaker 05:
He has a patient who he believes requires medication stabilization. Well, he's a state actor in this particular case. He is. We haven't – we didn't – Yeah, dispute that. So he's providing this service to his patient. He believes that this medication is required for medication stabilization. This is also, it's important to note as well that this is also a medication. Haldol was administered to Brooke before she even came to Aurora at the Abrazo Healthcare Hospital.

[00:28:19] Speaker 05:
So this was a medication that was given to her there for stabilization, which plaintiff does not seem to have issue with.

[00:28:27] Speaker 05:
and then Dr. Malak, you know, with his patient, decides that this is what she needs for stabilization. You have a court order in place that provides for medication stabilization, and he specifically did get the consent from DCS to provide this medication. And it's also important to note that he did reach out to Christine several times, at least.

[00:28:50] Speaker 00:
Wasn't that disputed?

[00:28:51] Speaker 05:
No.

[00:28:52] Speaker 00:
He says he did. But she testifies, I looked at my phone and there's no messages on it. Maybe not credible, but that's not an issue at this point.

[00:29:01] Speaker 05:
Well, exactly. So, yes, they do argue that Christine did not receive these contact requests.

[00:29:08] Speaker 00:
See, so if this were a case about whether or not she was required to receive notice of this specific medication, and I sort of take Judge Graber's point that she had notice of a process that led to it. But that's not what they were talking about. They're talking about the absence of consent. They're not talking about the absence of notice.

[00:29:29] Speaker 05:
Exactly, Your Honor. They are. They're talking about the absence of consent. And, of course, our position is that they did not. Dr. Malak did not need Christine's consent to provide the medication stabilization.

[00:29:40] Speaker 00:
And therefore, in your view, he didn't need to try to contact her either.

[00:29:43] Speaker 05:
Well, if you go to the October 17th order, which was after the administration.

[00:29:48] Speaker 00:
Under the order that existed, did he have consent? Under the Constitution, did he have an obligation? Well, let me ask the question. Under the Constitution, did he have an obligation to contact?

[00:29:57] Speaker 05:
Well, Your Honor, yes. First of all, if we go back, there's two separate arguments, and we've argued this in our brief, too, that Dr. Malak, even absent the court orders or, well, with the court orders, did satisfy constitutional requirements, which is to notify the parents, obtain either parental consent or a court order in advance and permit the parent to be present.

[00:30:18] Speaker 00:
I'm not sure you want to make this argument. That's why I'm asking it. If the Constitution requires that he notify the parent, there seems to be a fact dispute about whether or not he did in this case.

[00:30:32] Speaker 05:
Yes and no. Based on our first argument, Your Honor, whether or not there was fundamentally fair procedures which precipitated a court order, which provided Dr. Malak with the authority to provide medication stabilization and DCS the authority to provide medication stabilization. No, there was no specific constitutional requirement that they notify the parents.

[00:30:54] Speaker 00:
And I don't read their briefing as focusing on absence of notice. Their briefing focuses on absence of consent by Christine.

[00:31:01] Speaker 05:
Exactly. I see that my time is up unless there's any more questions.

[00:31:06] Speaker 05:
It does not appear so. Thank you. Thank you.

[00:31:10] Speaker 02:
Your Honor, I don't think we concede that there was no requirement for notice.

[00:31:16] Speaker 00:
Well, you don't make any argument in your brief that there's a requirement for notice.

[00:31:19] Speaker 02:
Well, I think it's just a standard constitutional requirement.

[00:31:24] Speaker 00:
So we're supposed to make the argument for you?

[00:31:26] Speaker 02:
No, Your Honors. But the points I want to make right now –

[00:31:36] Speaker 04:
was seeking the order from the court, both the first one on August 30th and also, again, for the September 4th order. Your client received notice, was obviously on notice that the filing had been made by DCS with the Superior Court, correct?

[00:31:52] Speaker 02:
Yes.

[00:31:53] Speaker 04:
For inpatient psychiatric care, correct?

[00:31:54] Speaker 02:
Absolutely.

[00:31:55] Speaker 04:
Okay.

[00:31:56] Speaker 02:
And for a trial of Thorazine, not Haldol. Because that's what Dr. Malak indicated.

[00:32:01] Speaker 04:
The court orders are for inpatient psychiatric care. There is no specific.

[00:32:07] Speaker 04:
reference to either one of those drugs in the court order itself. I guess what I'm saying to you is there was notice to your client, perhaps not by Dr. Malak directly, but by DCS when it filed for the court orders.

[00:32:22] Speaker 02:
There was no notice that Haldol is going to be administered.

[00:32:27] Speaker 03:
Why is that required when the statute, essentially it interprets the court order permitting acute inpatient psychiatric care to include all kinds of stabilization medications.

[00:32:45] Speaker 02:
The only thing the statute includes is a definition of acute care, which includes medication stabilization. Correct. That's my point. Which is authorized as a treatment. And it doesn't go on to say medication stabilization includes the administration of antipsychotic medications. If that exists anywhere, I heard this panel say that it was in the DCS. Excuse me.

[00:33:11] Speaker 03:
But as I understand it, Haldol is a stabilizing medication. It falls within that definition.

[00:33:20] Speaker 02:
I suppose a broad category of drugs fall within that stabilization from aspirin all the way up to Haldol. But if you're going to say that medication stabilization, that broad category as a statutory phrase, a sufficient process for a forced administration of a psychotropic medication that is the highest potency with the highest risk profile for children and is contraindicated for use with children, then I think we might as well just throw Washington v. Harper and similar cases out the window because they're meaningless in that case.

[00:33:58] Speaker 02:
The reason the additional process was needed in Harper was because of the significant and severe consequences of the use of such a potent antipsychotic drug. And here again, Dr. Malak, he couldn't have reasonably believed the move from Thorazine to Haldol was sufficient under the court's order because he sought additional consent.

[00:34:25] Speaker 02:
And he was mistaken in his discharge summary. He says he sought DCS's consent but not Mother's because she had no legal rights. Again, that's just constitutionally incorrect. And so what I'd like to ask is that at a minimum this panel should reverse summary judgment because a jury could find a constitutional violation once actual objection was known and no individualized judicial authorization was sought. We're not asking for a rule that every medication decision requires a separate hearing.

[00:34:57] Speaker 02:
We're asking for a rule that an uninformed doctor cannot force or continue a major antipsychotic medication on a nonverbal minor in temporary state custody without one of three things, either informed parental consent, judicial authorization addressing the specific use of such a high-potency drug, or an emergency necessity. Everybody agrees the emergency didn't exist here. So either parental consent was necessary or an additional process.

[00:35:28] Speaker 02:
That's what we're doing. The state wants to override a fit parent on forced psychotropic medication. If it's going to do that, it must first do no harm by using the clear... I think we have your argument, counsel.

[00:35:38] Speaker 04:
Thank you very much. Thank you, Your Honor. Thank you both, counsel, for your helpful argument. The case just argued is submitted, and that will conclude our arguments for today. We'll stand in recess. Thank you.

[00:35:47] Speaker 03:
Thank you.