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One flew over the Supreme Court.

It is too soon to tell how seriously to take Soviet historian Roy A. Medvedev's statements that "Gorbachev's taking a lot from the American Constitution," and that the U.S. "can take some pride in setting an example for us [the Soviets]." (1) But it is not too soon to conclude that the President of the United States and the U.S. Supreme Court have taken a page from some old totalitarian tactics. The President, for example, remains committed to constitutional amendments that would outlaw almost all abortions and outlaw flag burning as a means of political protest. The U.S. Supreme Court last year gutted the Fourth Amendment as it applied to U.S. citizens to foster the "war on drugs." (2) Early in 1990 the Court decided that antipsychotic drugs could be forcibly administered to competent prisoners to maintain order, even if the result might be death or permanent disability. How could our highest court endorse such a prototypical totalitarian measure at this juncture of our history? The Case of Walter Harper

Walter Harper was convicted of robbery in 1976 and sentenced to the Washington State Penitentiary in Walla Walla. He was confined primarily to the mental health unit there from 1976 to 1980, where he voluntarily underwent antipsychotic drug therapy. In 1980 he was paroled on condition that he continue in treatment. He did, but in 1981 his parole was revoked after he assaulted two nurses at an inpatient facility. Upon his return to prison he was sent to the Special Offenders Center (SOC), a 144-bed facility operated by the Department of Corrections in Monroe. While there he voluntarily took medications until November, 1982, after which he was medicated by antipsychotic drugs against his will for all but one month until june 1985, because he was thought to be a danger to others.

The forced medication was consistent with SOC policy which provides that a prisoner may be subjected to involuntary drug treatment by a psychiatrist in a nonemergency situation only if he (1) suffers from a "mental disorder," and (2) is "gravely disabled" or poses a likelihood of serious harm "to himself, others, or their property." If the prisoner refuses medication, he is entitled to a hearing before a special committee consisting of a psychiatrist, a psychologist, and the associate administrator of the SOC, none of whom may be, at the time of the healing, involved in the prisoner's treatment or diagnosis. The prisoner must be given twenty-four hours' notice of the hearing (during which time he cannot be medicated), has the right to attend the healing, to present evidence, to cross-examine witnesses, and to have a lay adviser help him. The prisoner may appeal a decision against him to the Superintendent of the SOC, and may later seek judicial review.

After seven days of forced treatment, a committee composed in the same manner as the original committee must review the case. If the committee approves forced treatment again, it can continue indefinitely provided a report by the treating psychiatrist is sent to the medical director of the Department of Corrections every fourteen days.

Harper had his hearing and was unsuccessful in his appeal to the Superintendent. His forced treatment was periodically reviewed according to the policy. In February 1985, he filed suit alleging that he had a constitutional right not to be medicated against his will without a judicial hearing. In March 1987, the trial court ruled that the SOC policy provided him with all that the U.S. Constitution required. On appeal, the Washington Supreme Court unanimously reversed. (3) The Decision of the Washington Supreme Court

The Washington Supreme Court was unimpressed by the SOC's antipsychotic medication policy and found it constitutionally defective as a matter of both substantive and procedural due process. Substantively, the Washington court found that Harper had a protected liberty interest to refuse antipsychotic drugs that was of the same importance as his liberty interest in being able to refuse electroconvulsive therapy (ECT). The court determined that this liberty interest could be overridden only if the state could prove: "(1) a compelling state interest to administer antipsychotic drugs; and (2) the administration of the drugs is both necessary and effective for furthering that interest."

As a procedural matter, the court held that these determinations must be made by a court after a hearing, which must also make a determination based either on the expressed desires of the patient or on substituted judgment. Representation by counsel was also required by the opinion, and any court order for forced treatment must be supported by "clear, cogent, and convincing" evidence. This opinion was unanimous (9 to 0). The Majority Decision of the U.S. Supreme Court

Justice Anthony Kennedy authored the six-to-three opinion of the U.S. Supreme Court, (4) which concluded that the Washington court overstated both the substantive and procedural rights guaranteed to prisoners by the U.S. Constitution and accordingly reversed their decision.

In terms of substantive rights, the Court agreed that prisoners do have a right "to avoid the unwanted administration of antipsychotic drugs." Nonetheless, this right must yield if the state can demonstrate that forcing treatment is "reasonably related to legitimate penological interests." Such interests do not include the use of drugs as punishment, but do include the use of drugs for treatment and to maintain order in the prison environment. This latter interest in "prison safety and security" the Court noted, is especially important because prisons are "by definition" made up of "persons with `a demonstrated proclivity for antisocial criminal, and often violent conduct.'" In deciding whether a forced drug treatment regulation meets the "reasonably related to a legitimate penological interest" standard, a reviewing court should examine three factors: (1) the connection between the regulation and the state interest it is meant to foster, (2) the impact accommodating the asserted right will have on other prisoners, the guards, "and on the allocation of prison resources generally," and (3) the absence of ready alternatives. Using these factors, the Court concluded that the SOC regulation is constitutional as a matter of substantive due process. Problems of potential abuse are avoided because: ... the fact that the medication must first be prescribed by a psychiatrist, ensures that the treatment in question will be ordered only if it is in the prisoner's medical interests, given the legitimate needs of his institutional confinement. (5) As to procedural due process, the Court concluded that no judicial review is needed because "an inmate's interests are adequately protected, and perhaps better served, by allowing the decision to medicate to be made by medical professionals rather than a judge." Such professionals, the Court noted, are bound by the Hippocratic Oath, are in the best position to assess the risks of antipsychotic medication, and are best able to make medical judgments. Nor need the prisoner be provided with legal counsel at the hearing. In the Court's words: "It is less than crystal clear why lawyers must be available to identify possible errors in medical judgment." The Dissent

Justice John Paul Stevens wrote the dissent, which was joined by justices William Brennan and Thurgood Marshall. His major point was that the majority significantly undervalued Harper's substantive liberty interest, and permitted an "institutionally biased" tribunal to substitute for due process of law.

Stevens characterized an individual's liberty interest in avoiding the forced administration of antipsychotic drugs as having both physical and intellectual dimensions, and found forced treatment to be "degrading" when "it overrides a competent person's choice to reject a specific form of medical treatment." Forcibly using drugs "to alter the will and the mind of the subject," he argued, constitutes a "deprivation of liberty in the most literal and fundamental sense." Harper himself recognized the power of these drugs, stating he would rather die than take medication. At the time of this statement he was being forcibly medicated with prolixin, which acts "on all levels of the central nervous system as well as on multiple organ systems." The record indicated that prolixin: ... can induce catatonic-like states, alter electroencephalographic tracings, and cause swelling of the brain. Adverse reactions include drowsiness, excitement, restlessness, bizarre dreams, hypertension, nausea, vomiting, loss of appetite, salivation, dry mouth, perspiration, headache, constipation, blurred vision, impotency, eczema, jaundice, tremors, and muscle spasms ... [It] may also cause tardive dyskinesia, an often irreversible syndrome of uncontrollable movements ... and neuroleptic malignant syndrome, which is 30 percent fatal... (6) Harper had already been exhibiting dystonia (acute muscle spasms) and akathesia (physical-emotional agitation) by 1982. Stevens concluded that because of these potential adverse side effects, the Supreme Court of Washington properly equated such drug treatment with ECT, which could be refused in Washington by a competent prisoner.

Justice Stevens further noted that although the majority tried to interpret the SOC regulations to require a finding of potential medical benefit to the prisoner prior to medication, the regulations themselves contain no such requirement and permit "forced administration of psychotropic drugs on a mentally ill inmate based purely on the impact that his disorder has on the security of the prison environment," including a threat to property alone. There is, in fact, no requirement in the SOC policy that the treatment be in the prisoner's best interest or be medically indicated. Instead the prisoner's right to refuse treatment is directly subordinated to the institution's interest in order, and medication can be used simply as a chemical restraint.

Of course, if an emergency exists justice Stevens agrees with other courts that medication may be given if the mental patient or prisoner "is suffering from a mental disorder and as a result presents an imminent likelihood of serious harm to himself or others." An emergency provision was also part of the SOC policy, and was not challenged. What was at issue in this case is the power to drug in the sole interest of prison security and management, without any serious discussion or consideration of alternatives (such as permitting those few inmates who actually refuse medications to do so, and isolating or physically restraining them). The minority thus concluded that by failing adequately to divorce the twin justifications of beneficial treatment and prison order, and by equating the state's interest in responding to emergencies with the state's interest in convenient prison administration, the majority had eviscerated the individual's substantive liberty interest "in the integrity of his body and mind" for institutional convenience.

The minority also found the procedural requirements of the SOC policy constitutionally deficient. Their main point was that the decisionmakers are inherently biased. The fact that two were physicians (the treating psychiatrist and one member of the review panel) did not transform an otherwise unacceptable arrangement into an acceptable one, because the psychiatrists have a conflict of interest in reviewing the performance of their in-house colleagues (who, in turn, will be asked to review their performance). Moreover, since the panel members are all on the regular staff of the institution, they will be concerned not only with the inmate's welfare, "but also with the most convenient means of controlling the mentally disturbed inmate." As the minority noted, "The mere fact that a decision is made by a doctor does not make it `certain that professional judgment in fact was exercised.'" In fact, institutional interests are likely almost always to take precedence over any concern with the medical indications for forced medication, since two of the three members of the reviewing committee are neither trained nor licensed to prescribe psychotropic drugs, one has no medical expertise at all, and all appeals are solely to the SOC Superintendent.

There is, in fact, evidence of such institutional bias in Harper's case. For example, one drug, Taractan, was added to his medications in 1982 with the stated goal of "sedat[ing] him at night and reliev[ing] the residents and evening [staff] ... alike of the burden of supervising him as intensely." Institutional control is also preserved by discontinuing medication only twenty-four hours prior to the hearing (when single doses of some drugs are designed to be effective for a month), and having the SOC itself appoint the prisoner's adviser. The minority accordingly concluded that "institutional control infects the decisionmakers and the entire procedure." In Whose "Best Interests"?

What we should do about competent mentally ill persons who refuse drug treatment is an extremely difficult and contentious question. Outside prisons, we generally give the individual the legal right to refuse medication in nonemergency situations, even if the result is the unsatisfactory one of continued confinement to a mental institution. (7) Guardians are generally appointed to make substitute judgment decisions for those adjudged incompetent by a court. This general rule now has an exception: competent mentally ill prisoners who are a danger to themselves, others, or property may be forcibly medicated without judicial review or oversight. The psychiatric profession will generally hail this decision as a victory for themselves and their patients. But their celebration is premature. This decision will likely serve only to make the public in general, and prisoners in particular, more suspicious of psychiatrists who will be seen as agents of an oppressive state rather than as physicians pledged to act in the best interests of their patients.

Psychiatrists themselves must decide if they want to be agents of the state,just as other physicians have had to decide if they want to deliver lethal injections for capital punishment. Psychiatrists should take seriously the likelihood that even if they see forced medication as treatment, others will see it simply as a substitute for bars, straight jackets, and more guards. This case permits "treatment" solely for prison management. Although the holding is limited to prisoners, who have already been deprived of their basic right to liberty, and for whom the majority seems to have nothing but contempt, the Court's general message cannot be so easily confined. For example, while the flagrant use of lobotomy as punishment, so well captured by Ken Kesey in One Flew Over the Cuckoo's Nest, seems constitutionally forbidden by the opinion, the use of ECT, if ordered by a psychiatrist, for prison management may be permissible.

The majority states at least four times in the opinion that the treatment Harper was forced to endure was "medically appropriate." This is a core problem. What are we to make of the psychiatric profession that believes forced medication with major antipsychotic medications over a three-year period is "medically appropriate"? How far should society permit physicians to inflict their own views of "appropriate treatment" on competent adults who disagree with their assessments? This issue, unfortunately, is not directly dealt with by either the majority or minority opinion. Since World War II at least we should be able to recognize the extremes that governments can go to with the assistance of physicians who believe in the government's policy. As historian Robert Proctor has noted, "Crudely put, you can do things with doctors that it would be very much harder to do without [them]."

Finally, there is an almost overwhelming irony in this opinion. At a time when the U.S. Supreme Court has openly allied itself with President Bush in his "war on drugs," putting its weight behind the efforts to stop competent, free-living citizens from taking drugs voluntarily, and when the prisons across the country are filling up with those involved in the sale and distribution of mind altering drugs, the Court decides that it is constitutional for the same government to force its incarcerated citizens to take drugs they don't want.

In Huxley's Brave New World citizens were conditioned to love their station in life, and society ran smoothly by making psychotropic drugs freely available to the population. Our government is now constitutionally free to pursue a different strategy, albeit one that has been tried and found ultimately ineffective by other governments: the forced medication of prisoners for the convenience of prison staff and the intimidation of the public. Prisoners must "just say yes." References (1) Quoted in Bill Keller, "Democracy, Gorbachev's

Way," New York Times, 18 March 1990,

El. (2) See George J. Annas, "Crack, Symbolism,

and the Constitution," Hastings Center Report

19:3 (1989), 35-37. (3) Harper v. State, 759 P.2d 358 (Wash. 1988). (4) Washington v. Harper, 58 LW 4249 Feb. 27,

1990). (5) Washington v. Harper, at p. 4253. (6) Washington v. Harper, at p. 4257. (7) See, for example, George J. Annas, "Refusing

Medication in Mental Hospitals" in

Judging Medicine (Clifton, NJ: Humana,

1988), 238-43, and cases discussed therein. George J. Annas is Utley Professor of Health Law, and Director, Law, Medicine and Ethics Program, Boston University Schools of Medicine and Public Health
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Title Annotation:forcible administration of antipsychotic drugs to prisoners
Author:Annas, George J.
Publication:The Hastings Center Report
Date:May 1, 1990
Previous Article:Future directions.
Next Article:Case studies: the price of silence.

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