Riese Hearing: California’s Three-Part Medication Capacity Test

A Riese hearing is a California court proceeding that decides whether a person held on an involuntary psychiatric hold can be forced to take antipsychotic medication over their objection. A hearing officer applies a three-part capacity test, and the hospital has to prove the patient lacks capacity by clear and convincing evidence. If the hospital cannot meet that bar, the patient keeps the right to refuse. The hearing is named for the 1987 California Court of Appeal decision in Riese v. St. Mary’s Hospital and Medical Center, which held that involuntary psychiatric patients still have the right to informed consent about antipsychotic drugs unless a court finds they cannot make the decision.¹

Hospitalization for a mental health condition does not, by itself, make a person legally incompetent. Welfare and Institutions Code Section 5331 says so directly, and the Riese court built its ruling on that foundation. The court called the mind, which antipsychotic drugs act on, the “quintessential zone of human privacy.” That is the reasoning behind everything the hearing process is designed to protect.

When a Riese Hearing Gets Triggered

A hearing is triggered when a patient on an involuntary hold refuses antipsychotic medication that the treatment team has prescribed. Covered holds include the 72-hour evaluation hold under Section 5150, the 14-day intensive treatment hold under Section 5250, the additional 14-day hold for suicidal patients under Section 5260, and extended holds under Sections 5270.15 and 5270.70.²

Refusal doesn’t have to be formal. A patient who tells staff no, or otherwise signals refusal after being told about the medication and the right to decline it, has refused for these purposes. Before filing a petition, though, the treatment team has to do one more thing: consider whether alternatives to involuntary medication could meet the patient’s needs, and conclude those alternatives are unlikely to work.² Skipping that step is not allowed.

The Emergency Exception

Not every situation requires the hearing to happen first. In a genuine psychiatric emergency, staff can medicate a patient over objection before any capacity hearing. Section 5008(m) defines emergency as a condition creating an immediate risk of serious harm, and staff do not have to wait for that harm to actually occur. Two limits apply: only medication needed to address the emergency may be given, and it must be given in the least restrictive way possible.²

The exception is narrow. It covers the acute crisis only. Once the emergency conditions no longer exist, any continued involuntary medication has to go through the capacity hearing process.

The Petition and the 72-Hour Clock

When staff decide to seek a hearing, the facility files a petition with the superior court. The petition must include a psychiatric diagnosis supporting the clinical need for antipsychotics, the specific drugs and dosages the physician intends to administer, and an explanation of why the proposed treatment is the least restrictive option. The facility also has to acquire the patient’s medication history if possible.² The patient and their advocate or attorney get a copy of the petition when it is filed.

The hearing should take place within 24 hours whenever possible. Either side can request an additional 24 hours to prepare, and local court policies may allow one more 24-hour extension for hardship. The outside limit is 72 hours from filing. Where exigent circumstances are documented in the patient’s medical record, the hearing must be held on an expedited basis, as soon as reasonably practicable. This expedited-hearing provision is currently set to expire on January 1, 2030.³

How the Hearing Is Run

Hearings take place at the facility where the patient is being treated, in a spot that is least disruptive to ongoing care. Remote hearings are permitted under applicable court rules if the same conditions are met.³ The setting is formal but deliberately less intimidating than a regular courtroom.

A superior court judge, a court-appointed commissioner, or a court-appointed hearing officer presides. Hearing officers must be attorneys drawn from a list unanimously approved by the local mental health director, the county public defender, and county counsel or the district attorney. No one employed by the county mental health program or the treatment facility can serve, and every hearing officer must complete capacity-hearing-specific training.³

The treating physician typically opens by presenting the diagnosis, the proposed medication, and the clinical reasoning. The patient or their representative then responds, either challenging the clinical basis or offering evidence that the patient can make an informed choice. At the end of the hearing, the officer announces an oral decision. Written notification follows as soon as practicable and includes a statement of the evidence relied on and the reasoning behind the decision.³

The Three-Part Capacity Test

The officer is not deciding whether the patient’s choice is medically wise. The only question is whether the patient has the cognitive ability to make the decision at all. The Riese court set out three factors:¹

Awareness of the situation. If the court is satisfied a psychosis exists, does the patient acknowledge having a mental health condition?
Understanding of the treatment. Can the patient understand the benefits, risks, and alternatives associated with the proposed medication?
Ability to evaluate and decide rationally. Can the patient take in the informed-consent information and participate in the decision through rational thought?

A patient who can work through those steps has capacity, even if every clinician in the room disagrees with the choice they reach. The hearing officer is looking for a rational connection between the information disclosed and the patient’s stated conclusion. A refusal grounded in “I know the medication could help my symptoms and I know the side effects, and I still want to try something else” shows capacity. A refusal grounded entirely in a delusional belief that the pills are poisoned may not.

What Informed Consent Has to Cover

Capacity is measured against what the hospital is required to disclose. Under Section 5326.2, informed consent means the patient receives clear information about the nature and seriousness of their condition, the frequency and duration of the proposed treatment, the expected degree of improvement with and without it, the probability and duration of side effects, any division of professional opinion about effectiveness, available alternatives, and the right to accept or refuse treatment at any time.⁴ The question is whether the patient can meaningfully process this specific information, not whether they agree with the recommendation.

Patient Rights and Burden of Proof

The hearing is adversarial by design. Every patient has the right to representation by an attorney or a patients’ rights advocate. As soon as the petition is filed, the attorney or advocate meets with the patient to explain the process and help prepare.⁵ The patient can attend, present evidence and witnesses, and have their representative cross-examine the treating physician.

The hospital carries the burden of proof and has to establish incapacity by clear and convincing evidence.³ That standard sits well above a simple majority of the evidence, which reflects how serious it is to override a person’s refusal of a drug that changes brain chemistry. If the facility falls short, the patient keeps the right to refuse.

What Happens After the Decision

A finding of capacity means the facility cannot administer the disputed medication. The team has to look at voluntary options or alternative approaches, regardless of how strongly clinicians believe the medication is needed.

A finding of incapacity lets the hospital proceed, but only with the specific medications and dosages listed in the petition. It is not a blanket license to administer any antipsychotic at any dose. The order lasts only for the duration of the current hold. An incapacity finding made during a 5150 hold applies during that 72 hours (or into the initial 14-day 5250 hold if the patient is certified for that period), and it expires when capacity is restored or by court order, whichever comes first.⁵

When a hold transitions to a longer type under Sections 5260, 5270.15, or 5270.70, a new petition has to be filed. An existing medication order can carry over into the new hold period, but only while the new petition is pending and until the court hears it and issues a fresh decision.⁵ A single capacity finding cannot be stretched across weeks or months of involuntary treatment.

Appealing a Capacity Finding

A patient who disagrees with a finding of incapacity can appeal to the superior court or the court of appeal. A patients’ rights advocate or attorney can help file it.⁶ A writ of habeas corpus is a separate track that challenges the detention itself rather than the medication decision.

The tight timeline of these holds makes appeals hard in practice. A 72-hour 5150 hold may expire before an appellate court can act. For patients on longer holds, though, an appeal can matter, especially where the written findings contain errors of reasoning or the patient’s condition has changed since the hearing.

If the Patient Is an LPS Conservatee

An LPS conservatorship does not automatically mean the conservatee is incompetent or cannot make treatment decisions. The Riese court noted it would be illogical to treat conservatees as having fewer rights than patients who are not under conservatorship. A conservatee keeps the right to refuse medical treatment unless the conservatorship order specifically denies that right and authorizes the conservator to give informed consent on the person’s behalf.¹

If you or a family member are under an LPS conservatorship, the specific language of the order matters. Some orders include authority for the conservator to consent to antipsychotic medication; many do not. Without that explicit provision, the conservatee can refuse just like any other patient, and the same hearing process applies if the facility wants to override that refusal.

1
Justia. Riese v. St. Mary’s Hospital and Medical Center
2
California Legislative Information. California Code Welfare and Institutions Code 5332
3
California Legislative Information. California Code Welfare and Institutions Code 5334 – Capacity Hearings
4
California Legislative Information. California Code Welfare and Institutions Code 5326.2
5
Senate Judiciary Committee. SB 1184 (Eggman) – Mental Health Involuntary Treatment Antipsychotic Medication
6
California Department of Health Care Services. Rights for Individuals in Mental Health Facilities