Involuntary Administration of Anti-Psychotic Medication in Jails
By Expert: Gary DeLand
Responsibility for General Medical Care
Sheriffs and jail officials have a duty to provide a means for prisoners to receive adequate medical care. They do not, of course, participate or have a role in the actual direct delivery of medical services. Sheriffs have a myriad of administrative, law enforcement, search and rescue, and other functions in addition to managing the county’s jail system. Thus it is necessary for the Sheriff to delegate those responsibilities to jail officials. Because jail officials are not hired for their medical expertise and qualifications, the delegation does not stop with them–jail officials must also delegate medical care responsibilities. Jail officials are hired to manage, control, supervise, and provide basic life necessities for prisoners. Jail officials lack the medical competence to provide medical diagnoses, order treatment regimens, or second-guess the medical diagnoses, decisions, or treatments of the medical professions. Jail officials should not be looking over the shoulders of medical professionals and second-guessing their routine medical decisions and/or operational protocols.
Beyond providing for routine medical services, a seriously vexing problems is the care of mentally disordered prisoners who refuse to voluntarily accept medication deemed necessary for their care and well-being. If the health-care professionals have concluded that medication is required, can the prisoner legally be medicated against his/her will?
It is necessary when addressing forced medication and other medical issues, to depend on the expertise and professional judgment of the designated medical providers tasked with providing medical care in the jail. This does not mean, however, that there is no role for jail officials in matters of forced medication. This article discusses the process and legal considerations for administering forced anti-psychotic medication.
Definition of Terms
The definitions applied to prisoners exhibiting emotional problems, psychosis, paranoia, or bizarre behavior ranges from crazy to mentally challenged. For purposes of this discussion, there are two definitions that will be useful. The first term mentally disordered refers to prisoners who suffer from some level of psychosis, neurosis, or other serious mental health disorder; prisoners who have a mental condition which affects mood or thought processes which significantly impairs judgement, behavior, capacity to recognize reality, and cope with the ordinary demands of incarceration.1 The second term, anti-psychotic medication, refers to psycho-tropic drugs used in conjunction with treatment of mental disorder which results in grave disability or the likelihood of serious harm.
Forced Medication in Non-emergency Situations
Jail officials have an obligation to provide reasonable and adequate care to prisoners with serious health care needs.2 This is true even in circumstances where a prisoner’s mental disorder causes him to refuse essential care. Prisoners are a population that, under the best of circumstances, are difficult to manage; however, seriously mentally disordered prisoners present much more serious management difficulties for jail officials. Prisoners have a right to be treated for their serious medical needs. Deliberate indifference to serious medical needs of prisoners may cause unnecessary and wanton infliction of pain proscribed by the Constitution.3 The courts have consistently determined that serious mental health problems qualify as a medical need.4
Prisoners, however, also have a right to be protected against being involuntarily medicated. “The forcible injection of medication into a non-consenting person’s body . . . represents a substantial interference with that person’s liberty.”5 The prisoner’s right against involuntary medication must, however, be limited in cases were a prisoner is suffering a serious psychosis. Psychotic prisoners may include those who are seriously mentally ill or are gravely disabled. A gravely disabled prisoner is someone who is exhibiting a substantial threat of:
- Serious mental deterioration which seriously impairs his ability to function as demonstrated by a substantial loss of cognitive control over his behavior which results in serious impairment of the ability to care for his health and well being;
- Significant physical harm inflicted by the prisoner upon his own person, established by his threats or attempts engage in self-destructive actions; and/or
- Significant physical harm will be inflicted by prisoner upon another, as evidenced by behavior which has caused such harm or which places another prisoner in reasonable fear of sustaining such harm.
To properly and safely manage psychotic prisoners, it may be necessary to involuntarily treat with anti-psychotic drugs. The first step in the process of involuntary medication of a prisoner is a diagnosis by a psychiatrist that anti-psychotic drugs are a necessary part of the prisoner’s treatment program. Once such a diagnosis has been made that a prisoner needs to be treated with psycho-tropic or other anti-psychotic medications, the psychiatrist shall inform the prisoner of the diagnosis and the need for the medication and ask the prisoner to consent to the drug treatment. It is required that consent shall be informed consent. Informed consent means the prisoner is provided with an explanation of the proposed treatment, including but not limited to an explanation of the types, dosage, and purpose of the proposed medication; and the risks of both accepting and rejecting the proposed treatment and any alternative treatments.
If the prisoner then refuses to consent to be medicated or is not competent to give informed consent, it may be necessary to conduct a hearing to decide whether involuntary treatment may be required. Prisoners should be informed that their condition might worsen and that it may be necessary conduct a due process hearing to determine whether it may be necessary to administer the required medication without consent.
The psychiatrist may request the convening of an involuntary treatment review if it is determined the prisoner suffers from a mental illness and as a result of the mental illness, the prisoner is gravely disabled or poses a likelihood of serious harm to himself or others. The psychiatrist must conclude and document that involuntary treatment is in the prisoner’s best medical interest and that the prisoner lacks the ability to engage in a rational decision-making process regarding the acceptance of medical treatment as demonstrated by evidence of inability to weigh the possible advantages and disadvantages of treatment. The prisoner would then be entitled to a hearing before a involuntary treatment review committee. The committee should be chaired by a psychiatrist and include the Jail Commander and a health-care professional.
At least 24 hours prior to the hearing the prisoner shall be provided written notice of the date and time of the scheduled hearing and purpose and nature of the hearing. During the hearing the prisoner should be permitted to attend, present testimony and evidence, and cross examine witnesses. The prisoner is not entitled to be represented at the hearing by a lawyer,6 but should receive assistance from a lay advisor who:
- Understands the psychiatric issues involved;
- Is able to act independently in assisting the prisoner to further his declared interests;
- Has received training in the procedures involved to represent prisoners in involuntary treatment proceedings; and
- Is not involved in the prisoner’s current treatment.
The hearings are not bound by the rules of evidence normally applicable in judicial hearings. As the U.S. Supreme Court ruled:
We reject [the] contention that the hearing must be conducted in accordance with the rules of evidence or that a “clear, cogent, and convincing” standard of proof is necessary. This standard is neither required nor helpful when medical personnel are making the judgment required by the regulations here.7
Before involuntary medication should be ordered, majority of the committee members must conclude that the prisoner suffers from a mental disorder, is gravely disabled or poses a serious threat to himself or others, and anti-psychotic medication should be administered. The committee should memorialize the hearing by preparing hearing minutes or recording the hearing. The committee shall also document in writing the diagnosis, its factual basis, and the reason medical personnel believe the medication is necessary.
The prisoner may appeal the committee decision to the Sheriff within twenty-four (24) hours of receiving a written copy of the decision. If the prisoner chooses to appeal, a lay adviser should assist the prisoner prepare the appeal. The appeal should be handled by the Sheriff, the administrator of the jail’s medical program, and a member of the county board of health. The appeal decision should be rendered within 24 hours. The prisoner may petition the Court for judicial review (injunctive or extraordinary relief) if unsatisfied with the decision of the appeal committee.
Administering Forced Anti-Psychotic Medication
When all hearings and appeals have been exhausted and forced medication of the prisoner has been approved and ordered, the health-care providers will be authorized to administer the medication regimen recommend by the psychiatrist. After the initial hearing, involuntary medication can continue only with periodic review.8 After the first seven days of treatment, the committee should reconvene to determine if the forced medication should be continued and re-approved. The treating psychiatrist should provide continuous review of the case and prepare a report every 14 days for the jail’s health care administrator, the Sheriff, and the Jail Commander while treatment continues. The committee should meet every 10 to 14 days to reevaluate the need for the forced medication of the prisoner. Within 180 days after the committee’s initial decision, a full hearing shall be held to determine the need for continued treatment.
In an emergency situation the safety and welfare of staff and/or the psychotic prisoner may be sufficiently threatened by the prisoner’s psychosis or other mental illness and immediate administration of the anti-psychotic medication is necessary and cannot wait on the ordinary committee process. An emergency exists when, in the judgment of a mental health professional, a prisoner is suffering from a psychosis or other mental illness, and as a result of that illness, presents an imminent likelihood of serious harm to the prisoner, staff, or others. In exigent circumstances when the administration of medication needs to be administered involuntarily, the medical providers should immediately notify the psychiatrist who has been treating the prisoner. In the event the jail medical providers do not know if the prisoner is currently being treated by a psychiatrist, the situation should be treated as a medical emergency and contact made with a hospital or mental health clinic for psychiatric services.
The psychiatrist to whom the matter has been referred shall be provided the facts concerning the prisoner’s condition, the seriousness of the situation, the risks presented by the prisoners condition and actions, and the prisoner’s refusal to submit to voluntary medication, treatment, and/or any less invasive treatment alternatives. If the psychiatrist determines administration of emergency involuntary medication is the appropriate treatment option, the emergency treatment should be narrowly tailored to the scope and duration of the emergency as determined by the psychiatrist. When administration of involuntary treatment is ordered, the treatment may be continued as ordered for the duration of the emergency. If the need for involuntary medication continues beyond 48 hours, it will be necessary to convene the committee for a non-emergency determination regarding continued administration of the involuntary treatment.
As a final note, I would recommend that the writing of a jail’s policies and procedures should reviewed by the county attorney’s office and a psychiatric care provider.
Fred Cohen, The Mentally Disordered Inmate and the Law, Civic Research Institute (1998), p.2.6, n. 5, citing Dunn v. Voinovich, Case No. CI-93-0166 (S.D. Ohio 1993) consent decree.
Estelle v. Gamble, 429 U.S. 97 (1976); Gomm v. DeLand, 729 F.Supp. 767, 782-783 (D. Utah 1990), quoting McCracken v. Jones, 562 F.2d 22, 24-25 (CA10 1977), cert. denied, 435 U.S. 917 (1978).
Estelle v. Gamble, 429 U.S. 97, 105 (1976).
Bowering v. Godwin, 551 F.2d 44 (CA4 1977) (“[W]e see no underlying distinction between the right to medical care for physical ills and its psychological or psychiatric counterpart . . . .”).
Washington v. Harper, 494 U.S. 210, 229 (1990), citing Riggins v. Nevada, 504 U.S. 127 (1992); Jurasek v. Utah State Hospital, 158 F.3d 506 (CA10 1998).
“[I]t is less than crystal clear why lawyers must be available to identify possible errors in medical judgment.” Given the nature of the decision to be made, we conclude that the provision of an independent lay advisor who understands the psychiatric issues involved is sufficient protection. Washington v. Harper, 494 U.S. 210, 236 (1990), quoting, Walters v. National Association of Radiation Survivors, 473 U. S. 305, 330 (1985).
Washington v. Harper, 494 U.S. 210, 235 (1990); Vitek v. Jones, 445 U.S. 480, 494-495 (1980).
Washington v. Harper, 494 U.S. 210, 216, n. 4 (1990).