Forced Medication in CST Cases A Psychiatrist’s Perspective on Recent Legal Decisions Howard Zonana MD Yale Dept. of P

1. Forced Medication in CST Cases A Psychiatrist’s Perspective on Recent Legal Decisions • Howard Zonana MD • Yale Dept. of Psychiatry • Saks Institute for MH Law

3. Overview: • Sell conflates civil and criminal procedures by inserting separate civil parenspatriaeprocedures into the criminal process- • Misuse 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

4. Dilemmas for attorneys • 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

5. Dilemmas for Psychiatrists • 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.

6. Mental llness can confound ?s • 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.

7. Agnosognosia • 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)

8. 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.

9. Weston v. US(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.”

10. Weston v. US(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.

11. Weston v. US(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.

12. Weston v. US(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

13. Weston v. US(206 F.3d 9, 3/24/2000) • Referred back for questions re Riggins and Harper and consideration of ethical issues • 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."

14. Riggins v. US (504 U.S. 127, 1992) • 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."

15. Riggins (504 U.S. 127, 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.”

16. Weston v. US(206 F.3d 9, 3/24/2000) • The Dist.Ct. must answer the ? • ..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.?

17. Weston v. US(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

18. 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.

19. Also some hidden agenda • Death Penalty conflict- • Defense 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.

20. Other Potential Abuses • 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 jail-refused meds-incompetent x3

21. Misdemeanors and hospital beds • 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.

22. Charles Thomas Sell

23. Typical Expert Controversy • 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.)

24. Sell v. US. (539 U.S. 166, 2003) • This standard will permit involuntary administration of drugs solely for trial competence purposes in certain instances. But those instances may be rare.

25. Sell v. US. (539 U.S. 166, 2003) New aglorithym • 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.

26. Sell v. US. (539 U.S. 166, 2003) • 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.

27. Sell v. US. (539 U.S. 166, 2003) • 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.

28. Sell v. US. (539 U.S. 166, 2003) • 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.

29. Sell v. US. (539 U.S. 166, 2003) • 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 competencegrounds will likely disappear.

30. Sell v. US. (539 U.S. 166, 2003) • 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.

31. C.G.S. 17a-543 (e) • 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,

32. CGS 17a-543 (f) • 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.

33. APA Brief in Sell • 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

34. APA Brief in Sell • 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”

35. 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.

36. 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.

37. State of Utah v Barzee, 177 P.3d 48 (2007) • 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.

38. State of Utah v Barzee, 177 P.3d 48 (2007) • 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.

39. State of Utah v Barzee, 177 P.3d 48 (2007) • 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.

40. State of Utah v Barzee, 177 P.3d 48 (2007) • 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%

41. 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

42. US v. Loughner 2011 U.S. App. LEXIS 16512 • 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 three-judge 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”

43. 212 US App Lexis 4489 3/5/2012 • 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.”

44. 212 US App Lexis 4489 3/5/2012 • 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,

45. 212 US App Lexis 4489 3/5/2012 • 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.

46. 212 US App Lexis 4489 3/5/2012 • 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,"

47. 212 US App Lexis 4489 3/5/2012 • J. BybeeThe 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.

48. 212 US App Lexis 4489 3/5/2012 • 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

49. Using benzodiazepines vs antipsychotics proposal by the defense

50. How serious is govt. interest—max sentence v. likely sentence v likely harm • Criminal goals are different than civil but overlap