Forced Medication in CST Cases
A Psychiatrist’s Perspective on Recent
Legal Decisions
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Howard Zonana MD
Yale Dept. of Psychiatry
Saks Institute for MH Law
Overview:
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Sell conflates civil and criminal procedures by
inserting separate civil parens patriae
procedures into the criminal processMisuse by both prosecution and defense
Continuation of medication misperceptions re
“mind control” and inability to present the
defendant “au natural”
Legal matters trump health only in the area of
mental health
Dilemmas for attorneys
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How to establish/maintain an alliance
with a client who is incompetent and
making irrational requests? e.g. Dupont
case
“Let him stay incompetent as long as
possible—any delay is good-every day
is another day he is alive”-defense
Dilemmas for Psychiatrists
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Malingering defendants
Mute or quasi-mute defendants
Courts want conclusory opinions and
not just a delineation of capacities
In some states there is no opportunity
for more extensive evaluations in a
hospital where 24/7 observations can
be obtained in complicated cases.
Mental llness can confound ?s
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Anosognosia /æˌnɒsɒgˈnəʊsɪə/ is a condition in
which a person who suffers disability seems unaware
of the existence of his or her disability. Unlike denial,
which is a defense mechanism, anosognosia is
rooted in physiology (for example, damage to the
frontal or parietal lobe due to illness and disease).
This may include unawareness of quite dramatic
impairments, such as blindness or paralysis. It was
first named by the neurologist Joseph Babinski in
1914.
Agnosognosia
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Also used to describe the lack of insight
shown by some people who suffer from a
mental illness such as bipolar disorder or
psychosis. They do not have the insight to
recognize that they suffer from a mental
illness. While clearly not sufficient in
competency questions it can reinforce
delusions and the lack of need for treatment.
(See Saks 69 N.C.L. Rev. 945 1991)
Russell Eugene Weston Jr.
Russell Eugene Weston Jr.
was charged with killing two
U.S. Capitol police officer in
a shootout in the corridors of
the Capitol in Washington on
July 24, 1998. Weston was
diagnosed as a paranoid
schizophrenic years before
the shooting and spent nearly
three months in a mental
hospital, the Washington
Post reported. He was
determined incompetent to
stand trial and ordered to
start taking his medicine
again.
Weston v. US
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(206 F.3d 9, 3/24/2000)
While working for NASA in the early
80’s, he developed a “Ruby Satellite
System,” a powerful reverse time
machine that enables users to “push
time in reverse…by passing us through
the Jurassic Sea, putting us in another
time frame.”
Weston v. US
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(206 F.3d 9, 3/24/2000)
“ Those who are now in control are basically
cannibals.” They have overused the system and
“worn time down to 1/32 of one element of time,”
spawning the development and spread of “Black
Heva,” a disease similar to HIV or the plague.
Black Heva will soon reach epidemic proportions,
“killing 35% of the people in the US. Users can
access the system through 3 consoles, one of
which is on the 1st floor of the US Capitol and has
the capacity to override the entire system. “Time
was running out” and he had to get to the override
console.
Weston v. US
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(206 F.3d 9, 3/24/2000)
July 24, 1998- two Capitol police officers
were shot and killed.
October 9, 1998- Russell Weston Jr. is
charged with murder of the two officers and
attempted murder of a third officer along with
some weapons charges.
April 22, 1999- Weston is found incompetent
to stand trial and is committed to Butner, NC
under 18 USC 4241(d) for restoration.
Weston v. US
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(206 F.3d 9, 3/24/2000)
5/13/99 &7/8/99-Two Hospital hearings re
forced medication
8/20/99- Dist. Ct. approves medication as
medically appropriate and that considering
less intrusive alternatives, it is essential for
the defendants own safety or the safety of
others
Reversed on the basis of insufficient record to
justify medication use re dangerousness
Weston v. US
(206 F.3d 9, 3/24/2000)
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Referred back for questions re Riggins and Harper
and consideration of ethical issues
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7/26/00 a.m. Tr. at 64 (Dr. Zonana's testimony: Question: "To
your knowledge is there any hospital in this country that would
not attempt to treat this patient with antipsychotic medication to
address the illness as you understand it based on the materials
that you've had an opportunity to sit in and review?" Answer:
"Well, I think that is the standard treatment of choice
these days [and] if you don't offer and try to use
medication in a situation like this, it is negligent."
Riggins v. US (504 U.S. 127, 1992)
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Justice Kennedy, in a concurring opinion,
"If the defendant cannot be tried without his
behavior and demeanor being affected in
this substantial way by involuntary
treatment, in my view the Constitution
requires that society bear this cost in order to
preserve the integrity of the trial process."
Riggins (504 U.S. 127,
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1992)
“ The state of our knowledge of
antipsychotic drugs and their side effects is
evolving and may one day produce effective
drugs that have only minimal side effects.
Until that day comes, we can permit their
use only when the State can show that
involuntary treatment does not cause
alterations raising the concerns enumerated
in this separate opinion.”
Weston v. US
(206 F.3d 9, 3/24/2000)
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The Dist.Ct. must answer the ?
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..can the government, in order to make him
competent to stand trial forcibly medicate him
without impairing his right to a fair trial as
guaranteed by the 5th and 6th Amendments.?
Weston v. US
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(206 F.3d 9, 3/24/2000)
Is someone, in seclusion with a guard at the
door 24 hrs/day, dangerous if he has not
attacked anyone?
Do you judge dangerousness on the basis of
what the person is like in a staffed hospital or
what he would be like if released
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If Weston were no longer confined to a room and
under constant surveillance, he would be dangerous
and, presumably, could be medicated. However,
because the government cannot medicate him while
he is carefully confined-and therefore, not dangerous-it cannot release him into the general pre-trial
detention population without incurring substantial
risks. The result: the government is all but forced to
keep Weston in isolation, a condition almost
everyone agrees is detrimental to Weston's long-term
mental health.
Also some hidden agenda
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Death Penalty conflictDefense stated they would have no
objection to medications if the death
penalty were taken off the table
Govt. said we cannot assess the death
penalty issue until he is competent to
stand trial and we do our own
evaluation.
Other Potential Abuses
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State v. Jenkins, 954 A2d 806 (2008)
C.G.S. 54-56d provides:…The period of placement
under the order...shall not exceed the period of the
maximum sentence which the defendant could
receive on conviction…or 18 months whichever is
less
Defendant had been an inpatient for three non
consecutive periods totaling 21 months—found
incompetent-to hosp.- restored-sent back to jailrefused meds-incompetent x3
Misdemeanors and hospital beds
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Prior to Sell – Misdemeanors would not
rise to a State v. Garcia (233 Conn. 44
1995) override on seriousness grounds.
When a defendant is not competent to make medical
decisions, a health care guardian should be
appointed to represent the defendant's best medical
interests when the state seeks to administer
medication over the defendant's objections.
Charles Thomas Sell
Typical Expert Controversy
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Doctors DeMier and Wolfson, who've treated Dr. Sell
at the Medical Center, have testified that he needs
antipsychotic medication, and that although they can't
promise that it will restore him to competency, it's the
only thing that can.
Dr. Cloninger of Washington University, whom the
defense hired to evaluate Dr. Sell, disagrees that
antipsychotic drugs are a good choice. He said
there's no evidence that they're helpful in treating
delusional disorder. (He did not, Heaney notes, offer
a suggestion for what might restore competency.)
Sell v. US. (539 U.S. 166, 2003)
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This standard will permit involuntary
administration of drugs solely for trial
competence purposes in certain
instances. But those instances may be
rare.
Sell v. US. (539 U.S. 166, 2003) New aglorithym
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First, a court must find that important governmental
interests are at stake. The Government's interest in
bringing to trial an individual accused of a serious
crime is important.
Special circumstances may lessen the importance of
that interest. The defendant's failure to take drugs
voluntarily, for example, may mean lengthy
confinement in an institution for the mentally ill--and
that would diminish the risks that ordinarily attach to
freeing without punishment one who has committed a
serious crime.
Sell v. US. (539 U.S. 166, 2003)
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Second…It must find that administration of the drugs
is substantially likely to render the defendant
competent to stand trial. At the same time, it must
find that administration of the drugs is substantially
unlikely to have side effects that will interfere
significantly with the defendant's ability to assist
counsel in conducting a trial defense, thereby
rendering the trial unfair.
Sell v. US. (539 U.S. 166, 2003)
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Third, the court must conclude that involuntary
medication is necessary to further those interests.
The court must find that any alternative, less intrusive
treatments are unlikely to achieve substantially the
same results. And the court must consider less
intrusive means for administering the drugs, e.g., a
court order to the defendant backed by the contempt
power, before considering more intrusive methods.
Sell v. US. (539 U.S. 166, 2003)
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Fourth, as we have said, the court must conclude that
administration of the drugs is medically appropriate,
i.e., in the patient's best medical interest in light of his
medical condition.
Sell v. US. (539 U.S. 166, 2003)
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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.
If a court authorizes medication on these alternative
grounds, the need to consider authorization on trial
competence grounds will likely disappear.
Sell v. US. (539 U.S. 166, 2003)
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Finally, the lower courts did not consider that Sell has
already been confined at the Medical Center for a
long period of time, and that his refusal to take
antipsychotic drugs might result in further lengthy
confinement. Those factors, the first because a
defendant ordinarily receives credit toward a
sentence for time served…and the second because it
reduces the likelihood of the defendant's committing
future crimes, moderate--though they do not
eliminate--the importance of the governmental
interest in prosecution.
C.G.S. 17a-543 (e)
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If it is determined by the head of the
hospital and two qualified physicians
that a patient is incapable of giving
informed consent…
there is substantial probability that
without such medication for the
treatment of the psychiatric disabilities
of the patient the condition of the patient
will rapidly deteriorate,
CGS 17a-543 (f)
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a patient is capable of giving informed
consent but refuses to…
without medication, the psychiatric
disabilities with which the patient has
been diagnosed will continue unabated
and place the patient or others in direct
threat of harm.
APA Brief in Sell
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Relatedly, as the APA explained in Riggins, “[t]he
mental health produced by antipsychotic medication
is no different from, no more inauthentic or alien to
the patient than, the physical health produced by
other medications, such as penicillin for pneumonia
(which might be labeled ‘synthetic fitness’ or
‘synthetic health’).” APA Riggins Br. 9; see Riggins,
504 U.S. at 141 (Kennedy, J., concurring in the
judgment
APA Brief in Sell
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Munro concluded in 1999: “delusional disorder, properly
diagnosed and adequately treated, has an optimistic outlook.
Whatever the neuroleptic employed, the overall rate of
response, total or partial, is approximately 80 per cent, an
outcome that compares well with any other in psychiatry. It is
clearly desirable to identify and, if possible, treat cases. Munro
concluded in 1999: “delusional disorder, properly diagnosed and
adequately treated, has an optimistic outlook. Whatever the
neuroleptic employed, the overall rate of response, total or
partial, is approximately 80 per cent, an outcome that compares
well with any other in psychiatry. It is clearly desirable to identify
and, if possible, treat cases”
Brian David Mitchell
Wanda Eileen Barzee
Brian David Mitchell (born October 18,
1953) is a former street preacher convicted
in United States Federal District Court in
Utah for the Elizabeth Smart kidnapping
following six years in psychiatric custody.
He was sentenced to life in prison on May
25, 2011.
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By the fall of 2004 both were found
incompetent to stand trial and had
remained confined at the Utah State
Hospital for over five years. The two
defendants were diagnosed with the
same disorder and both refused
antipsychotic medication that was
recommended by their psychiatrists.
State of Utah v Barzee, 177 P.3d 48 (2007)
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Chief Justice Durham argued that the
standard of review to be used by the Court for
the four Sell factors were different. The first
factor-whether the government’s asserted
interest is important- is a legal question and is
thus entitled to de novo review. The third and
fourth factors-necessity and medical
appropriateness- are factual in nature and
therefore subject to only review for “clear
error” by the lower court.
State of Utah v Barzee, 177 P.3d 48 (2007)
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Judge Durham argued (but was not in the majority on
this issue) that the second question-whether
medication will be substantially likely to render the
defendant competent to stand trial- was a mixed
question of fact and law, since competency was a
legal concept. In her de novo review, she then
proceeded to reanalyze all of the expert’s opinions
and came to a conclusion opposite from that of the
trial court or the majority of the Utah Supreme Court.
State of Utah v Barzee, 177 P.3d 48 (2007)
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The court went on to discuss what
“substantially likely” means in this context. A
few other courts had considered the question.
In a 2004 Second Circuit decision a seventy
percent chance at restoration was considered
substantially likely. An Eighth Circuit case
found a ten percent chance or a “glimmer of
hope” was inadequate to meet the standard.
State of Utah v Barzee, 177 P.3d 48 (2007)
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Other courts have determined that “a
chance of success that is simply more
than a 50% chance of success does not
suffice to meet this standard.”
The Chief Justice opined, “To the extent
that such a likelihood can be quantified,
it should reflect a probability of more
than 70%
Loughner, Jared Lee
Jared Lee Loughner; born September 10,
1988) is charged with the shooting in
Tucson, Arizona, on January 8, 2011, that
killed six people, including Chief U.S.
District Court Judge John Roll. The
shooting also left 14 others injured,
including U.S. Representative Gabrielle
Giffords. He has been indicted on 49
counts by federal grand juries in Arizona
US v. Loughner 2011 U.S. App. LEXIS 16512
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On June 26, 2011, Judge Burns ruled that prison doctors could
forcibly medicate Loughner with antipsychotic drugs in order to
make him fit to stand trial. However, on July 12, 2011, a threejudge federal appeals panel from the Ninth Circuit ruled that
Loughner could refuse anti-psychotic medication, since he "has
not been convicted of a crime, is presumptively innocent and is
therefore entitled to greater constitutional protections than a
convicted inmate.”
However, the ruling stated that it "does not preclude prison
authorities from taking other measures to maintain the safety of
prison personnel, other inmates and Loughner himself, including
forced administration of tranquilizers”
212 US App Lexis 4489 3/5/2012
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Not clear if he has higher rights than an inmate on
dangerousness issue.
The July 12 Order stated that “[a]n inmate subject to
[antipsychotic] drugs ‘would immediately face a risk
of serious and potentially irreversible side effects”
that “can even be fatal” and that a pre-trial detainee
“has a strong personal interest in not being forced to
suffer the indignity and risk of bodily injury that results
from the administration of powerful drugs.”
212 US App Lexis 4489 3/5/2012
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July 1, Loughner's condition deteriorated
significantly. On July 8, because of perceived
changes in his behavior, FMC-Springfield
placed Loughner on suicide watch. On July
18, FMC-Springfield doctors determined that
Loughner was a severe danger to himself and
needed to be administered antipsychotic
medication on an emergency basis,
212 US App Lexis 4489 3/5/2012
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Loughner's then-current medication
regimen: 3mg of risperidone
(antipsychotic), twice a day; 300 mg of
buproprion XL (antidepressant); 1 mg of
benztropine (anticholinergic to control
side effects of antipsychotics), twice a
day; 1 mg of clonazepam (anxiolytic),
twice a day and 2 mg at bedtime.
212 US App Lexis 4489 3/5/2012
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The district court denied Loughner's
motion at a hearing on September 28,
2011, and again in a September 30
written order. During the hearing, the
district court noted that the involuntary
medication of Loughner is "predicated
on the ground of dangerousness and
really has nothing to do with his
competency,"
212 US App Lexis 4489 3/5/2012
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J. Bybee The district court did not commit
legal error in its commitment rulings, and its
finding that there is a substantial probability
that Loughner will be restored to competency
in the foreseeable future is supported by the
evidence and not clearly erroneous.
212 US App Lexis 4489 3/5/2012
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Dissent--I conclude that a court may not
commit a pretrial detainee for the purpose of
restoring his trial competency through
involuntary medication without itself deciding
that involuntary medication is both justified on
some properly applicable ground and unlikely
to infringe the detainee's fair trial rights
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Using benzodiazepines vs
antipsychotics proposal by the defense
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How serious is govt. interest—max
sentence v. likely sentence v likely harm
Criminal goals are different than civil but
overlap