Forcible Medication

This paper discusses the involuntary administration of psychotropic medication, which continues to be one of the most controversial issues in mental health law. Whether mental patients in hospital, the community, jail, prison, or the judicial process may refuse psychotropic medication that the government would like to administer raises complex legal, clinical, moral, and social issues. Psychotropic medication is by far the leading treatment technique for patients diagnosed with mental illness. Although demonstrably helpful for many patients, it often imposes serious direct, often debilitating, and unwanted side effects that are beyond the patient’s ability to resist and that may be long lasting. As a result, involuntary administration of these drugs raises serious constitutional questions.

Most states now have statutory and administrative restrictions on involuntary treatment. The limits imposed by the U.S. Constitution and its state counterparts are the most significant restrictions on state authority in this regard as they drive other legal restrictions. This entry discusses these constitutional limitations, the level of scrutiny the courts will apply in weighing right to refuse medication claims, and the standards that must be satisfied for involuntary medication to be authorized. To meet these standards, the government must show that treatment is both medically appropriate and the least-restrictive alternative means of accomplishing one or more compelling governmental interests. The patient is entitled to a hearing concerning the satisfaction of these criteria, typically occurring before treatment may be imposed. In an emergency, the hearing may take place thereafter.

Constitutional Bases for the Right to Refuse Medication

Constitutional limits on involuntary intrusive treatment of the kind represented by the psychotropic drugs derive from several sources. The U.S. Supreme Court has recognized that unwanted antipsychotic medication invades a significant liberty interest protected by the due process clauses of the Fifth and Fourteenth Amendments. Substantive due process protects a liberty interest in bodily integrity and personal security, as well as a liberty interest in personal autonomy in healthcare decision making that involuntary medication would invade. Moreover, such medication also may invade the First Amendment’s protection of mental privacy and freedom of mental processes from significant governmental intrusion. When administered as punishment, involuntary medication may also raise questions of cruel and unusual punishment banned by the Eighth Amendment. Moreover, because medication is not administered on an involuntary basis to medically ill patients, for whom informed consent would be required, but is for those with mental illness, an equal protection question may be raised. In more limited circumstances, when refusal of medication is based on religious objection, forced medication may infringe the First Amendment’s protection of the free exercise of religion.

The level of constitutional scrutiny of governmental attempts to impose involuntary treatment will vary with the intrusiveness of the treatment in question. Traditional antipsychotic drugs can induce a variety of Parkinson-like effects that are distressing and several serious and permanent effects such as tardive dyskinesia. Even the newer atypical antipsychotic drugs impose serious risks, including diabetes and perhaps stroke. Although drugs used in the treatment of depression and bipolar disorder may raise fewer constitutional difficulties, their impact on mood and mental processes remains sufficiently significant to require some degree of heightened judicial scrutiny. Almost all these drugs intrude directly and powerfully into mental processes, bodily integrity, and individual autonomy and therefore would seem justified only on a showing of compelling necessity.

Constitutional Requirements for Forcible Medication

The Supreme Court’s decisions in Sell v. United States (2003) and Riggins v. Nevada (1992), both involving criminal defendants seeking to refuse antipsychotic medication, seem to suggest a form of strict scrutiny. To justify the administration of antipsychotic medication, the Court required a finding that the involuntary medication was medically appropriate and the least intrusive means of accomplishing one or more compelling governmental interests. The government’s interest in restoring criminal defendants to competence to stand trial and maintaining them in a competent state so that they may be tried will meet this test as long as the medication in question is clinically appropriate for the individual, no less intrusive treatments or medications will achieve this goal, and medication will not significantly impair the defendants’ trial performance. When a criminal defendant seeks to refuse medication that the government contends is required to restore or maintain his or her competency, the criminal court will need to hold a hearing on whether these standards are satisfied and to make specific factual findings concerning them before medication may be imposed.

This strict scrutiny approach would seem generally applicable to the administration of unwanted, intrusive medication in hospital and community settings and even in jails that house pretrial detainees. A more relaxed standard will apply to sentenced prisoners, however. In Washington v. Harper (1990), the Supreme Court applied a reduced form of constitutional scrutiny to uphold the involuntary administration of antipsychotic medication in a prison hospital for an inmate who was found to be dangerous to other prisoners and staff. In prison contexts, as long as the medication is medically appropriate and reasonably related to the need to protect others from harm and to protect prison security, it may be imposed even if less restrictive alternatives, such as solitary confinement, might suffice to protect others from violence. Outside the prison context, however, involuntary medication will need to be justified as necessary to accomplish one or more compelling governmental interests.

Governmental Interests That May Justify Forcible Medication

What are the interests that count as compelling? As previously noted, the state’s interest in restoring an incompetent criminal defendant to competency so that he or she may stand trial will count as a sufficiently compelling governmental interest. Other state interests that will be deemed sufficiently compelling to outweigh the individual’s assertion of the right to refuse treatment will include the police power interest in the protection of others from harm. When mental illness renders an individual in an institution dangerous to self or others, including other patients or institutional staff, the government interest in preventing serious harm that is imminent will be deemed sufficiently important to outweigh the individual’s interest in avoiding unwanted medication, at least when other standards of strict scrutiny are satisfied. The state’s parens patriae interest in the well-being of individuals rendered incompetent by their mental illness to make treatment decisions for themselves also will meet the compelling interest test. When the individual has been determined to be incompetent to make such decisions, involuntary medication may be authorized if it is in the patient’s best medical interests and no less restrictive alternative treatments are medically indicated.

State statutes or administrative rules frequently authorize treatment in these circumstances for those who have been civilly committed or who accept voluntary admission to a hospital. An increasing number of states now authorize court-ordered involuntary treatment on police power or parens patriae grounds under statutes allowing outpatient commitment or conditional release from hospitalization. Similarly, state statutes or administrative rules will authorize involuntary medication in such circumstances for those suffering from mental illness in jails and prisons.

Medical Appropriateness and Least-Restrictive Alternative Requirements for Involuntary Treatment

Even when these compelling interests are present, involuntary treatment must be medically appropriate and the least-restrictive means to achieve compelling state interests. The medical appropriateness requirement will necessitate a finding that the medication in question and the dosage sought to be imposed are clinically indicated for the individual. For purposes of applying the least-restrictive alternative test, the burden of establishing the futility of less restrictive treatments or their lack of success will be placed on the state. Treatments less restrictive than psychotropic medication, such as verbal, behavioral, or cognitive behavioral treatment, therefore should be attempted before medication is sought to be imposed, unless they are deemed to be unlikely to succeed in the circumstances. In addition, if the individual can show that an alternative medication that is less intrusive would suffice, or even a lower dosage of the medication sought to be imposed, then these less restrictive alternatives should be attempted. If alternatives other than treatment are available that would fully satisfy the governmental interest in involuntary treatment, such treatment may be impermissible. For example, in the case of the government’s police power interest in protecting other patients or institutional staff from the violent acts of a mentally ill individual who is institutionalized, alternative means of containing the danger, such as seclusion and restraint, may be more preferable to the patient than medication and therefore should be used instead.

The Right to a Hearing

Even when involuntary medication is constitutionally permissible, procedural due process will require notice and a fair hearing before treatment may be imposed. Some states require a formal, adversarial judicial hearing, but most courts have accepted the constitutionality of permitting informal and nonadversarial administrative hearings. Procedural due process also will require periodic review of the need for continued medication. Even though it may be overwhelmingly likely that the outcome of such hearings will result in approving the need for medication or continued medication, the hearing can have important value in educating the patient concerning why medication is needed and providing him or her with a form of participation in the decision-making process that provides the patient with a voice and a sense of validation. When these participatory or dignitary values of procedure are accorded, the patient may be more accepting of the decision to impose medication and more compliant with it. The attitudes that procedural justice fosters may therefore increase the effectiveness of the medication that the individual is required to receive and the likelihood that he or she will continue to take it even when not forced to do so.

Waiver of Right to Refuse Treatment: The Informed Consent Doctrine

Of course, not all patients will refuse psychotropic medication. The right to refuse treatment may be waived as long as the requirements of the informed consent doctrine are satisfied. These include disclosure of treatment information, competency, and voluntary choice. In fact, when the requirements of informed consent are satisfied, patients may enter into advance directive instruments that express their wishes concerning the acceptance or rejection of treatment at a future time when they may become incompetent. Although not yet in widespread use for this purpose, advance directive instruments are likely to emerge as an important way for dealing with the right-to-refuse-treatment question in the future.

Professional Ethics and Therapeutic Jurisprudence

Apart from legal restrictions on involuntary medication, forced treatment raises ethical concerns for clinicians. The professional ethics of the various clinical disciplines strongly favor voluntary treatment. Moreover, psychological theory would suggest that voluntary treatment is more efficacious for many patients than coerced therapy. Coercion may spark patient resistance, whereas voluntary choice may engage the patient’s intrinsic motivation and increase treatment compliance. As a result, the principles of beneficence and nonmaleficence, which are at the core of professional ethics, would strongly favor voluntary approaches and the use of less intrusive techniques before involuntary medication is attempted. Because psychological theory would predict that voluntary treatment will be more effective than coerced treatment and more likely to produce treatment compliance over time, considerations of therapeutic jurisprudence also would favor voluntary over involuntary treatment.

Of course, these therapeutic benefits of voluntary choice may not apply when the individual is incompetent to engage in rational decision making. However, even for patients rendered incompetent as a result of their mental illness, once medication has succeeded in restoring competency to make treatment decisions, these ethical and therapeutic jurisprudence concerns can present therapeutic opportunities.

Judges, attorneys, and clinicians called on to act in the forcible medication context, thus, should understand that they function as therapeutic agents in the way they treat the individual who seeks to resist unwanted medication. Judges and clinicians involved in involuntary treatment therefore should treat patients fairly, with dignity and respect, and accord them a sense of participation in the decision-making process. The hearing that often will be required before involuntary medication may be imposed, if structured to satisfy these conditions and properly conducted, can have a significant therapeutic value. Rather than resisting the patient’s right to refuse treatment, clinicians should understand that recognition of such a right and the patient’s participation in treatment decision making can present therapeutic opportunities.

References:

  1. Riggins v. Nevada, 504 U.S. 127 (1992).
  2. Sell v. United States, 539 U.S. 166 (2003).
  3. Washington v. Harper, 494 U.S. 210 (1990).
  4. Winick, B. J. (1997). The right to refuse mental health treatment. Washington, DC: American Psychological Association Books.
  5. Winick, B. J. (2005). Civil commitment: A therapeutic jurisprudence model. Durham, NC: Carolina Academic Press.

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