• Michael Mullan

Forced Medication to Restore Competency to Stand Trial

This blog post examines the circumstances where a criminal defendant is forced to take medication, mostly psychotropic medications, in order to restore his/her competency to stand trial. The first thing to be shown is that there needs to be an important reason to prosecute the crime. In fact, the leading case of Sell v. United States (123 S. Ct. 2174 (2003)) was more about the community’s interests in prosecuting rather than the civil liberty interests of the defendant. The importance of the Sell case should not be underestimated given that it has been cited over 500 times by the lower courts. Some states have a procedure whereby the competency of the defendant is reviewed by the judge every 90 days. Involuntary medication of a criminal defendant usually arises in two scenarios, namely where the defendant is a danger to his/herself or others and where the defendant faces serious charges, but is not dangerous or incompetent to make treatment decisions.

According to the Sell Supreme Court case, involuntary medication can only be used for restoration of competency when:

1) medication is substantially likely to restore competence.

2) medication is substantially unlikely to have adverse effects that will significantly infringe on the defendant’s trial rights (not prejudice his/her trial or affect the defendant’s ability to testify)

3) Less intrusive alternatives substantially unlikely to achieve restoration. These mainly come in the form of nonmedical interventions (ie, psycholegal education, cognitive remediation, special programs for those with neurodevelopmental disorders, and individual psychological treatment)

4) Important prosecutorial interests (eg, seriousness of offense, blameworthiness with prior criminal record, and need for confinement to protect public safety);

5) must also be in the defendant’s/patient’s medical interest.

In Sell indefinite commitment for improbable restoration was successfully challenged as inconsistent with constitutional equal protection and due process. The civil commitment that comes along with the forced medication can only exist for a “reasonable period of time” and exist as long as the defendant/patient is not substantially likely to be restored in the “foreseeable future.” When looking to restore competency, the patient must be civilly committed, if appropriate, or released.

As Heilbrun & explain King, reasons for not wanting forcible treatment include the following:

• adverse effects of typical antipsychotics.

• Liberty & due process

• Bodily integrity through right to privacy

• informed consent as a matter of due process

• Free speech

• cruel and unusual punishment

• personhood and autonomy

• Decreasing the number and dosage of medications prescribed

• Decreased prescribing delegations to non-physicians

• procedural justice

• data to substantiate concerns about threats to the refusing patient’s well-being or disruption to the treatment milieu (eg, safety, other patients’ care) absent involuntary treatment

Again according to Heilbrun & King, reasons for forcible treatment include:

• Without treatment, experience distressing and neurotoxic symptoms, more frequent seclusion, and longer periods of hospitalization

• staff increased burden, lower quality of treatment, and increased danger

• financial and productivity costs of review procedures

For further reading please see the following:

· Sell v. United States (123 S. Ct. 2174 (2003).

· Kirk Heilbrun & Christopher M. King, Forced Medication and Competency to Stand Trial: Clinical, Legal, and Ethical Issues, 34 Psychiatric Times (4) (2017)

· John R. Hayes, Sell v. United States: Is Competency Enough to Forcibly Medicate a Criminal Defendant, 94 J. Crim. L. & Criminology 657 (2003-2004)

· Robert M. Wettstein, Psychotropic Medications and Criminal Defendants, AMA Journal of Ethics (Oct. 2003)

· Kathy Swedlow, Forced Medication of Legally Incompetent Prisoners: A Primer (ABA, 2003)

· Elizabeth G. Schultz, Sell-Ing Your Soul To The Courts: Forced Medication To Achieve Trial Competency In The Wake Of Sell V. United States, 38 Akron Law Review 503 (2005)

· Lisa Kim Anh Nguyen, In Defense of Sell: Involuntary Medication and the Permanently Incompetent Criminal Defendant, University of Chicago Legal Forum (1) (2005)

· Brenda A. Likavec, Unforeseen Side Effects: The Impact of Forcibly Medicating Criminal Defendants on Sixth Amendment Rights, 41 Val. U. L. Rev. 455 (2006).

· Bruce J. Winick, Psychotropic Medication and Competence to Stand Trial, 2 American Bar Foundation Research Journal (3) 769 (1977).


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