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HomeMy WebLinkAbout03-229 EquityCOMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS, STATE CORRECTIONAL INSTITUTION AT CAMP HILL ABDEL FATTAH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2003-0229 EQUITY CIVIL ACTION - EQUITY IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925 Guido, J., September ,2003 The defendant has appealed our order of April 23, 2003. At our direction he has filed a "Concise Statement of Matters Complained of on Appeal". Unfortunately, it is neither concise nor comprehensible. ~ Since we are unable to discern the precise objections he has to our order, we will recite the case history and set forth the reasons for the order. On January 15, 2003, the Commonwealth of Pennsylvania, Department of Corrections, State Correctional Institution at Camp Hill (hereinafter "DOC") filed a complaint in equity alleging that defendant's refusal to eat placed him in imminent danger of death or other irreparable medical harm.2 Concurrent with the filing of the complaint, the DOC filed both a Motion for Preliminary Injunction and an Application for an Ex Parte Temporary Injunction. Based upon the allegations and exhibits, we were satisfied that an exparte order was justified under Pa.R.C.P. 1531. We entered an order 1 While it rambles on for several pages and complains of actions taken by the Department of Corrections after our order of April 23, 2003, it makes no reference to our decision. 2 Complaint paragraph 22. No. 2003-0229 EQUITY enabling the DOC to take any action, including force feeding, which was necessary in the opinion of its medical staff to preserve the defendant's health and life.3 A hearing on the Motion for Preliminary Injunction was set for January 17, 2003. The January 17, 2003, hearing was held as scheduled. The defendant appeared pro se. The DOC presented credible evidence outlining petitioner's significant history of engaging in hunger strikes. It also presented credible medical evidence that the cumulative effect of those hunger strikes along with his current refusal to take nutrition and hydration placed him in danger of death or immediate serious bodily injury unless medical testing and treatment, including force feeding, was administered. Defendant did not dispute his refusal to take nutrition nor the medical necessity for force feeding. He did, however, take issue with the methods used by the DOC. Specifically, he objected to the use of a nasal tube to administer nutrition. He also objected to the tube being left in place at all times. After the hearing, we modified the ex parte preliminary injunction to require that the DOC remove the nasal tube after each force feeding procedure had been completed.4 In addition, we scheduled a hearing in connection with the permanent injunction for March 24, 2003. On January 22, 2003, we appointed counsel to represent the defendant. We also authorized the expenditure of funds to secure a medical expert to "review defendant's medical records generated from his treatment at SCI-Camp Hill and testify on his behalf if necessary.''5 Pursuant to a defense requested continuance, the hearing on the permanent See Order dated January 15, 2003. See Order dated January 17, 2003. See Order dated March 3, 2003. No. 2003-0229 EQUITY injunction was continued until April 23, 2003. At the rescheduled hearing the defendant did not contest the authority of DOC to forcibly administer nutrition to preserve his life or health.6 Rather, he again objected to the method by which the nutrition was administered, i.e. by using the nasal tube. After hearing the DOC's witnesses, all of whom we found to be credible, we were satisfied that the nutrition was being administered in a medically appropriate and professional manner,v We were also satisfied that the defendant's own conduct made the use of any less intrusive procedure impractical. Therefore, the preliminary injunction entered on January 17, 2003 was made permanent by our Order of April 23, 2003. DATE Edward E. Guido, J. Marsha M. Davis, Esquire Mark Bayley, Esquire Abdel Fattah, EU- 1065 SCl-Camp Hill 2500 Lisburn Road, P.O. Box 8837 Camp Hill, Pa. 17001-8837 :sld 6 That particular issue was resolved by the Commonwealth Court in Commonweal& Dept. of Public Welfare, Farview State Hospital v. Kallinger, 134 Pa. Commonwealth 415, 580 A.2d 887 (1990). 7 Despite having retained a medical expert at court expense, the defendant did not offer any evidence to the contrary.