Court ordered psychiatric drugging and electroshock is illegal when measured against the constitutional requirements for forcing someone to ingest drugs, or be subjected to electroshock, against their will.

Under the United States Constitution, if a right is considered “fundamental,” in order to infringe on that right, the government is (a) required to have a compelling interest (reason), (b) the method chosen to further that interest must be reasonably assured to achieve its objective, and (c) the method must be narrowly tailored, meaning there cannot be a less restrictive or intrusive means of achieving the objective. This was most recently articulated in 2003 by the United States Supreme Court in Lawrence v. Texas, as follows:

Our opinions applying the doctrine known as “substantive due process” hold that the Due Process Clause prohibits States from infringing fundamental liberty interests, unless the infringement is narrowly tailored to serve a compelling state interest.

Let’s apply these principles to forced drugging and electroshock. In 2003 the United States Supreme Court also decided Sell v. United States, in which the government wanted to force Dr. Sell, a dentist, to take neuroleptics, to “restore” him to competence so he could stand trial for health care fraud. The U.S. Supreme Court held such forced drugging permissible under the constitution only when the following conditions are met:

The court must find that important governmental interests are at stake. The court must conclude that involuntary medication will significantly further those concomitant state interests. 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. 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. (emphasis in original).

This is classic analysis of a fundamental right under the due process clause. I will address each of these requirements in turn.

Governmental Interests

What is the government’s important interest in forcing someone to be psychiatrically drugged or electroshocked against their will? It depends. (The answer to all legal questions) More specifically, there are various situations in which the issue comes up and the government’s interests are different in each one.

Standing Trial On Criminal Charges

In Sell, the government’s interest was to restore Dr. Sell to competency so that he could be put on trial for healthcare fraud. To be competent to stand trial for a crime, a defendant must be able to understand the nature of the charges and be able to assist his or her lawyer. Clearly, being able to put someone on trial for murder is an important enough governmental interest. However, is putting someone on trial for “illegal use of telephone,” such as calling 911repeatedly, an important enough interest to force someone to take psychotropic drugs against their will? I don’t think so.

Civil Commitment

Most of the time we think of forced psychiatric drugging and electroshock in the context of civil commitment. In this setting, there are two justifications (governmental interests). The first is known as Parens Patriae, which is Latin for “parent of the nation,” and means the government is stepping in to act as a parent for someone who cannot take care of him or herself. In other words, “We are from the government and are here to help you.” In order for the government to be able to assert this right, it has to prove the person is incompetent to decide for him or herself. These determinations, in themselves, are illegitimate and could be the subject of an entire article, in itself. However, I will limit this to a couple of comments.

First, one can look at the transcript of Faith Myers’ testimony (pp 0123-0148)) to decide for oneself whether she was incompetent to decline the medication and then look at the judge’s decision (pp 12-14). To me, the judge’s decision that Faith was incompetent to decline the medication was a travesty.

Second, I will note that the reasoning to find someone incompetent to decline the medication or electroshock, is often circular in that when a person says they don’t want the psych drug(s) or electroshock because it doesn’t work and/or is harmful, that is cited as proof the person is delusional and incompetent. In the Myers case, the psychiatrist testified in a deposition (pp 39 – 43) that if someone agrees to to take the medication, he decides the person is competent and if not, the person is incompetent.

In fact circular reasoning is enshrined in Alaska Statutes 47.30.837(d)(1)(B), where it provides, “denial of a significantly disabling disorder or impairment, when faced with substantial evidence of its existence, constitutes evidence that the patient lacks the capability to make mental health treatment decisions.”

The second justification for forced drugging and electroshock in the civil commitment context is safety, i.e., that the person must be drugged for their own safety or those of others. This is known as the “Police Power” justification. Forced drugging under this justification also tends to be an illegitimate process. First, the safety risk must be extreme. For example, under Alaska Statutes 47.30.838 (a)(1), emergency forced drugging is only allowed if, “there is a crisis situation, or an impending crisis situation, that requires immediate use of the medication to preserve the life of, or prevent significant physical harm, to the patient or another person.”

In one of the Bill Bigley cases, I took the deposition (PDf pages 34-37) of the hospital psychiatrist about her use of “emergency” medication, which makes clear that (a) she didn’t know what the legal requirements were and (b) Mr. Bigley was being drugged for non-existent emergencies.

Whether the government has a sufficiently important interest in most civil commitment cases is certainly subject to challenge in many cases.

Prison

Another common setting for forced psychiatric drugging is people convicted of crimes and in prison. Being convicted of a crime and in prison as opposed to being charged with a crime and in jail is a huge difference, legally. People in prison have the least legal protection. Thus, with respect to forced psychiatric drugging in prison, the United States Supreme Court held in Washington v. Harper that the government doesn’t have to show an important or compelling interest, just that it is “reasonably related to legitimate penological interests,” holding :

[G]iven the requirements of the prison environment, the Due Process Clause permits the State to treat a prison inmate who has a serious mental illness with antipsychotic drugs against his will, if the inmate is dangerous to himself or others and the treatment is in the inmate’s medical interest.

Note, that even here, in order to be constitutional the court ordered drugging must be in the person’s medical interest.

OUTPATIENT COMMITMENT

Outpatient Commitment, where people are court ordered to take psychiatric drugs in the community has taken what I consider a bizarre turn. In 2004, the high court of New York held in the K.L. case that a finding of incompetence was not required, nor was the fundamental right to be free of forced psychiatric drugging involved, because the outpatient commitment statute did not authorize forced drugging, saying “it simply triggers heightened scrutiny on the part of the physician, who must then determine whether the patient may be in need of involuntary hospitalization.” In other words, the New York high court held that an [outpatient commitment] order mandating a person take psychiatric drugs does not really compel the person to take psychiatric drugs. This is a classic example of a court decision being divorced from reality.

There is, however, a 2008 New Mexico case, Protection and Advocacy System v. City of Albuquerque, that recognizes the delusional (my word) nature of the New York high court’s holding that New York’s outpatient commitment law does not involve court ordered medication:

‘R]egardless of whether there are sanctions in the Ordinance for failure to comply with court-ordered treatment, the coercive nature of a court order requiring treatment would clearly allow an act contrary to the statute’s mandate that an individual’s consent be obtained as long as the individual has capacity.”

However, since the City of Albuquerque case involved whether the city’s ordinance conflicted with state statute and was therefore invalid, the issue was not front and center.

In any event, with respect to the governmental interests involved, in K.L. the New York high court held the police power justification applied as follows:

Inasmuch as an [outpatient commitment] order requires a specific finding by clear and convincing evidence that the patient is in need of assisted outpatient treatment in order to prevent a relapse or deterioration which would be likely to result in serious harm to self or others, the state’s police power justifies the minimal restriction on the right to refuse treatment inherent in an order that the patient comply as directed.

The court also held the parens patriae justification applied as follows:

[T]he state’s parens patriae interest in providing care to its citizens who are unable to care for themselves because of mental illness is properly invoked since an AOT order requires findings that the patient is unlikely to survive safely in the community without supervision; the patient has a history of lack of compliance with treatment that has either necessitated hospitalization or resulted in acts of serious violent behavior or threats of, or attempts at, serious physical harm; the patient is unlikely to voluntarily participate in the recommended treatment plan; the patient is in need of assisted outpatient treatment in order to prevent a relapse or deterioration which would be likely to result in serious harm to the patient or others; and it is likely that the patient will benefit from [outpatient commitment].

There are many aspects of this that could be discussed at length, but I will just make two short comments. The first is that the court held the patient must benefit from the drugging, which is highly dubious, at best. The second, more over-arching, is that many of the requirements for obtaining an outpatient commitment order in New York cannot, in fact, be properly proven in most cases, such as the person is unlikely to survive without the forced drugging. Again, that so many of these orders get issued demonstrates where I think the legal system vis-à-vis involuntary commitment and forced drugging is most broken, which is the lawyers assigned to represent people don’t do their job.

Forced Drugging Furthering Governmental Interest

The second Sell requirement is that the involuntary medication will significantly further the state interests justifying the forced drugging. In other words, the forced drugging must accomplish the goal that justifies it. So, again, the setting matters because that determines what is the state interest(s). In the restore-a-criminal-defendant-to-competency situation so the state can put the person on trial, the forced drugging must therefore have a good likelihood of making someone competent to stand trial. However, while in some cases drugs do knock down psychosis, most of the time they merely sedate the person so they are not bothersome. This was classically stated in the recent reporting in connection with forced drugging of Jared Loughner:

He was removed from a May 25 court hearing when he lowered his head to within inches of the courtroom table, then lifted his head and began a loud and angry rant. But his psychologist has said that since Loughner has been forcibly medicated, his condition has improved. He sat still and expressionless for seven hours at a hearing in September.

Query: Is sitting still and expressionless for seven hours an indication someone understands the charges against him and can assist his lawyer? Of course not, it merely shows that the drugs prevent him from being disruptive. In other words, the assertion that the drugs cause someone to become competent to stand trial can be challenged. As an aside, I am not in favor of people using mental illness as a way to avoid criminal responsibility for their actions.

In the civil commitment and outpatient commitment contexts, it is also very dubious that the forced drugging will actually achieve the stated goals. First, we know from Anatomy of an Epidemic and other sources that psychiatric drugs (a) increase rather than decrease violence, (b) dramatically shorten lives, (c) dramatically increase disability; and (d) dramatically decrease recovery. Thus, it is quite questionable in many cases whether especially the parens patriae justification, in fact, exists. However, even though psychiatric drugs, especially the antidepressants and neuroleptics, increase violence, the neuroleptics can also render people incapable of causing much trouble. Thus, neuroleptics very well may further the governmental police power interest in that.

However, it is most often not true that the drugs accomplish the asserted justification for the forced drugging. Again, the reason why so many forced drugging orders are issued is because the lawyers assigned to represent people, don’t do so.

Less Intrusive Alternatives

e court must conclude that involuntary medication is necessary to further those interests; that there are no less intrusive alternatives. The Alaska Supreme Court, in the Bigley case, addressed what the requirement means under the Alaska Constitution, The third Sell requirement is thnecessary

Although the state cannot intrude on a fundamental right where there is a less intrusive alternative, the alternative must actually be available, meaning that it is feasible and would actually satisfy the compelling state interests that justify the proposed state action.

(p. 31)

Here too, the lawyers appointed to represent people facing forced drugging rarely fulfill their obligation to assert the right to a less intrusive alternative. However, proving there is a less intrusive alternative can be difficult even if the attorney tries because the hospital has an automatic “expert,” the testifying psychiatrist, while the defendant often does not have the resources to employ an expert or otherwise prepare a case.

starting at page 30, the Alaska Supreme Court’s discussion of this issue can give one an idea of the way a court looks at it and the difficulties in prevailing. In addition to the lawyers assigned to represent people not doing their job properly, one of the biggest obstacles is appellate judges, just like trial court judges, believe the common wisdom that the drugs are helpful and nothing else works. A s I wrote in , this is one of the reasons why educating the public about the truth is so important. In Bigley the Alaska Supreme Court’s discussion of this issue can give one an idea of the way a court looks at it and the difficulties in prevailing. In addition to the lawyers assigned to represent people not doing their job properly, one of the biggest obstacles is appellate judges, just like trial court judges, believe the common wisdom that the drugs are helpful and nothing else works. A A Three Pronged Approach to Mental Health System Change , this is one of the reasons why educating the public about the truth is so important.

Best Interests

The final Sell requirement and the one that ultimately leads me inexorably to the conclusion that forced drugging and electroshock cannot be properly ordered, is 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.” The truth is that while a small percentage of people might rationally decide to take neuroleptics with full knowledge of their lack of effectiveness for most and harm to all, it is not possible for a court to legitimately find by clear and convincing evidence that forcing someone to take them is in their best interest. Frankly, I don’t think it is possible under the preponderance of evidence standard.

Space doesn’t allow me go through the evidence on this, but Anatomy of an Epidemic does. Much of the evidence has also been compiled as part of PsychRights’ and MindFreedom’s Forced Drugging Defense Package. It includes an affidavit from Robert Whitaker, the “clickable” verson of which has hyperlinks to the cited studies. Also, my 2008, law review article, Involuntary Commitment and Forced Psychiatric Drugging in the Trial Courts: Rights Violations as a Matter of Course has much of the same material woven with the legal standards and the perspective of people faced with such court proceedings. The bottom line is the evidence does not support forcing someone to take psychiatric drugs against their will is in their best interests.

The same is true of electroshock in light of the harm and lack of benefit from electroshock. In contrast to the neuroleptics, however, I think electroshock should be abolished altogether in light of its complete lack of benefit and extreme harm.

Conclusion

Under the United States Constitution, as well as state constitutions, the government is not allowed to force someone to take psychiatric drugs or be electroshocked against their will unless it can prove such drugging or electroshocking is (1) necessary to achieve a compelling governmental interest, (2) the least intrusive alternative, and (3) in the person’s best interest. In most cases, neither the 1st or 2nd requirement is met because (1) the drugging or electroshock does not accomplish the government interest asserted, and (2) there are less intrusive alternatives. The last element, that the forced drugging or electroshock is in the person’s best interest, however, cannot be legitimately proven, which is why I conclude forced drugging and electroshock in the United States is illegal.

The question that jumps out from these circumstances is why people’s rights are being so pervasively violated? The short answer, as I indicated in A Three Pronged Approach to Mental Health System Change, is the lawyers and judges believe the conventional wisdom that if the defendant wasn’t crazy she would know it is good for her so we won’t let her pesky constitutional rights get in the way. This is why educating the public is so important.

In addition to this, however, a big reason why people’s rights are being violated as a matter of course is the lawyers appointed to represent people faced with forced drugging and electroshock proceedings are not fulfilling their professional obligations when they go along with this. But that is the subject of a future blog.