There is a Right to Refuse Medication
in Forensic Commitments:
Now What do We Do?
David Meyer, J.D.
Institute of Psychiatry & Law
U.S.C. Keck School of Medicine
Forensic Mental Health Association
30th Annual Conference 2005
Session Objectives:
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Understand forensic patient’s rights to
refuse medication as described in recent
appellate decisions
Understand current obligations to forensic
patients, the Court and litigators related
administration of medication
Discuss approaches being used in
response to cases and obligations
Purpose and Disclaimer
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This is an educational presentation related to
laws and legal principle. It’s only purposes are to
provided attendees with information and support
discussion about a topic of interest to them.
Nothing presented here constitutes legal advice.
There are views other than those that will be
expressed today.
If you have a question about the application of
anything discussed here to something of
concern to you, consult an attorney
knowledgeable in the issues presented.
From Where Does the Right to Refuse
Medication Come?
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Historical practice in California: commitment
order=power to medicate (In Re Locks)
USSC in Washington vs. Harper (1990)
interprets the 14th Amendment “Due Process”
clause
USSC in Sell vs. U.S. (2002) interprets the 5th
Amendment “Due Process” Clause
CA. SC in In Re QAWI (2004) interprets P.C.
§2972(g)
CA amends P.C. §§1370, 1370.01 (2004)
CA. C.A. in P. vs. O’Dell (2005) interprets P.C.
§(a)(1)(F)(2)(B)
What is Due Process?
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Amendment 5: “No person shall…be deprived of life,
liberty, or property, without due process of law”
Amendment 14: “…nor shall any state deprive any
person of life, liberty, or property, without due process of
law; nor deny to any person within its jurisdiction the
equal protection of the laws”
Procedural Due Process= fairness of the proceedings by
which rights are denied
Substantive Due Process= “fundamental unfairness”
save when the government has a superior interest
Statutory interpretation: What did they really mean?
Washington vs. Harper
(1990) 494 U.S. 210
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State prisoner has a 14th Amendment
liberty interest in not being medicated [cf.
Vitek vs. Jones] unless G.D. or threat of
“serious harm” to person or property.
[Substantive DP]
Invol. meds. may be given only after a
non-judicial hearing procedure [cf. Keyhea
vs. Rushen] in which the prisoner can
challenge the decision. [Procedural DP]
Sell vs. United States
(2003) 539 U.S. 166
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“…the [5th Amendment of the] Constitution permits the
Government involuntarily to administer antipsychotic
drugs to a mentally ill defendant facing serious criminal
charges in order to render that defendant competent to
stand trial, but only if the treatment is medically
appropriate, is substantially unlikely to have side effects
that may undermine the fairness of the trial, and, taking
account of less intrusive alternatives, is necessary
significantly to further important governmental trialrelated…” (Substantive DP)
OR…
Sell vs. United States
(2003) 539 U.S. 166
“A court need not consider whether to allow forced
medication for that kind of purpose, if forced medication is
warranted for a different purpose, such as the purposes set
out in Harper related to the individual’s dangerousness, or
purposes related to the individual’s own interests where
refusal to take drugs puts his health gravely at risk.”
AND
Sell vs. United States
(2003) 539 U.S. 166
“For another thing, courts typically address involuntary
medical treatment as a civil matter, and justify it on these
alternative, Harper-type grounds. Every state provides
avenues through which, for example, a doctor or institution
can seek appointment of a guardian with the power to
make a decision authorizing medication when in the best
interests of a patient who lacks the mental competence to
make such a decision.”
In Re Qawi
(2004) 32 Cal. 4th 1
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“We hold that in order to give MDO's the same rights as
LPS patients, an MDO can be compelled to take
antipsychotic medication in a nonemergency situation
only if a court, at the time the MDO is committed or
recommitted, or in a separate proceeding, makes one of
two findings: (1) that the MDO is incompetent or
incapable of making decisions about his medical
treatment [WIC §§5332, 5358; Riese vs. St. Mary’s]; or
(2) that the MDO is dangerous within the meaning of
Welfare and Institutions Code section 5300.”
[Substantive DP;Statutory interpretation]
In Re Qawi
(2004) 32 Cal. 4th 1
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Subdivision (g) of Penal Code section 2972 of the MDO
Act states, in pertinent part: "Except as provided in this
subdivision, the person committed shall be considered to
be an involuntary mental health patient and he or she
shall be entitled to those rights set forth in Article 7 [of
the LPS Act].... [T]he State Department of Mental Health
may adopt regulations to modify those rights as is
necessary in order to provide for the reasonable security
of the inpatient facility in which the patient is being held."
In Re Qawi
(2004) 32 Cal. 4th 1
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“… the LPS Act implicitly addresses state
interests in institutional security in
nonemergency situations by not including
patients committed under (WIC) section
5300…among those patients with the right to
refuse medication. Such patients have neither
the right to a capacity hearing possessed by
LPS short-term patients…nor the right to a court
determination of competency to refuse medical
treatment possessed by long-term LPS
conservatees.”
S.B. 1794 (Perata-’03-’04)
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Addresses “Sell” decision and more
Minor substantive additions to court
process
Leaves decision-making on
capacity/involuntary medication to the
court process
Judicial decision authorizes administration
of medication, or not
S.B. 1794 (Perata-’03-’04)
Additions to Penal Code §1369:
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Forensic doctors must evaluate:
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Mental disorder, if any
Ability to understand nature of proceedings or assist
counsel
Whether or not treatment with antipsychotic
medication is medically appropriate and is likely to
restore the defendant to mental competence.
Whether the defendant has capacity to make
decisions regarding antipsychotic medication and
whether the defendant is a danger to self or others.
The likely or potential side effects of the medication,
the expected efficacy of the medication, and possible
alternative treatments.
S.B. 1794 (Perata-’03-’04)
Additions to Penal Code §1370:
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Staged determination leading to authorization of
medication by provider.
FIRST, court determines if defendant consents
to medication
Commitment order must reflect:
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“…that antipsychotic medication may be given to the
defendant as prescribed by a treating psychiatrist
pursuant to the defendant's consent.”
If the defendant withdraws consent for antipsychotic
medication, the defendant must be returned to court
for hearing to determine involuntary medication
S.B. 1794 (Perata-’03-’04)
Additions to Penal Code §1370:
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If defendant does not consent, or if withdraws consent,
court determines, serially, whether ANY of these exists:
1) Def. lacks capacity to make decisions regarding
antipsychotic medication & it is probable that serious harm to
the physical or mental health will result w/out Rx.
2) Def. is a “demonstrated danger of inflicting substantial
physical harm on others” (cf. W.I.C. §5300 + 6 yr. limit on
consideration of past behavior)
3) “The people have charged the defendant with a serious
crime … involuntary administration of antipsychotic
medication is substantially likely to render the defendant
competent to stand trial; the medication is unlikely to have
side effects that interfere with the defendant's ability to
understand the nature of the criminal proceedings or to assist
counsel in the conduct of a defense in a reasonable manner;
less intrusive treatments are unlikely to have substantially the
same results; and antipsychotic medication is in the patient's
best medical interest in light of his or her medical condition.”
S.B. 1794 (Perata-’03-’04)
Additions to Penal Code §1370:
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If the court finds def. lacks capacity,
danger to others or meets “Sell” criteria, as
defined, then:
Court issues order authorizing the Tx
“facility” to involuntarily administer Rx
“…when and as prescribed by
the…treating psychiatrist.”
People vs. O’Dell
(2005) 126 Cal.App.4th 562
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Interprets 1/21/04 court order with §S.B.1794
Def. committed under §1370 without Rx order,
post Sell decision
NSH staff requested, and trial court authorized,
involuntary Rx authority.
REVERSED, trial court must:
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Consider facts & circumstances of current case
Consider hospital’s specific Rx recs. & assessment of Rx effects
and side-effects
Consider basis of hospital’s assessment of no alternative or less
intrusive approaches to restoration.
MORAL: specifically support the court request
for Rx. authorization
Other Forensic Commitments?
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SVP: Qawi limitations & authority apply to SVP
commitments: People vs. Calhoun (2004) 121
Cal.App.4th 1315* [EP; DP]
NGRI/1026.5: In Re Qawi: “The reasoning in
Locks is flawed…[because] the…court failed to
identify the statutory and/or constitutional rights
that govern persons committed after an
adjudication of not guilty by reason of insanity.
These questions are beyond the scope of the
present case.”
Outpatient/CONREP: ???
Now What Do we Do?
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Persuasion/Consent
Obtain authorization order from court (all commitments):
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Qawi “separate proceeding” to determine capacity or 5300 dangerousness
Emergencies: §1370(a)(1)(F)(2)(B)(vi); MDO (Qawi); SVP (Calhoun)
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Prompt request to court; copies to parties; hand-deliver or document receipt
Careful justification and documentation of request
Request should follow the “staging” pattern of §1370(a)(1)(F)(2)(B)
Follow-up
W.I.C. §5008(m) "a situation in which action to impose treatment over the person's objection
is immediately necessary for the preservation of life or the prevention of serious bodily harm
to the patient or others, and it is impracticable to first gain consent. It is not necessary for
harm to take place or become unavoidable prior to treatment."
9 C.C.R §853: “…a sudden marked change in the patient's condition so that action is
immediately necessary for the preservation of the life or the prevention of serious bodily
harm to the patient or others, and it is impracticable to first obtain consent."
Sell alternative (LPS?): “A court need not consider whether to allow forced
medication for that kind of purpose, if forced medication is warranted for a
different purpose, such as the purposes set out in Harper related to the
individual’s dangerousness, or purposes related to the individual’s own
interests where refusal to take drugs puts his health gravely at risk.”
Had Enough?
The lawyers, Bob, know too much.
They are chums of the books of old John Marshall.
They know it all, what a dead hand wrote, A stiff dead hand and its knuckles
crumbling, The bones of the fingers a thin white ash.
The lawyers know a dead man's thought too well. In the heels of the higgling
lawyers, Bob, Too many slippery ifs and buts and howevers,
Too much hereinbefore provided whereas, Too many doors to go in and out of.
When the lawyers are through What is there left, Bob?
Can a mouse nibble at it And find enough to fasten a tooth in?
Why is there always a secret singing When a lawyer cashes in?
Why does a hearse horse snicker Hauling a lawyer away?
The work of a bricklayer goes to the blue. The knack of a mason outlasts a
moon. The hands of a plasterer hold a room together. The land of a farmer
wishes him back again. Singers of songs and dreamers of plays build a
house no wind blows over.
The lawyers--tell me why a hearse horse snickers hauling a lawyer's bones.
Carl Sandburg