Court "limits" forced drugging
June 16, 2003 -- A court must decide if involuntary medication "will significantly further'' interests in punishment, said the U.S. Supreme Court in its 6-3 decision today in the case of Dr. Charles Sell. The court must balance the government's interest in punishing nonviolent crime with a person's constitutional right to control his or her body.
The decision will limit the common practice of putting defendants on anti-psychotic drugs for their trials. The Constitution allows the government to administer drugs only "in limited circumstances.'' In the case before the Court, Dr. Charles Sell had argued that he had a right to refuse to take anti-psychotic drugs.
Sell, of St. Louis, has spent more than four years in a prison hospital as his lawyers fought over his drugging. Supreme Court Justice Stephen Breyer, who wrote the opinion for the Court, said that the court must consider "alternative, less intrusive treatments.''
The case of dentist Charles Thomas Sell will be heard in the Supreme Court on March 3. At issue is the question of whether -- or when -- a non-dangerous person may be forcibly injected with antipsychotic medication solely to render him competent to be tried for crimes that have been described by Judge Kermit Bye of the 8th Circuit Court as "nonviolent and purely economic."
"I am worried that this case may fail, and thus just give more ammunition to those who want to take away our rights. The present U.S. Supreme Court is not the place to go right now to have anyone's rights vindicated," says Ted Chabasinski. Chabasinski is a survivor of ten years in a state hospital who is now directing attorney at Mental Health Consumer Concerns, a client-run group that operates patients'-rights and self-help programs.
As the Supreme Court wears down individuals' rights in favor of states' rights, Chabasinski's point is not lost on disability rights activists generally. Both the National Disabled Students Union and ADA Watch formed in the aftermath of earlier decisions limiting ADA protections.
When is it okay?
When is it acceptable for the government or its agents to force people to accept medical "treatment"?
I say "or its agents" because judicial action is state action: when courts authorize individuals or institutions to forcibly drug people, those individuals and institutions become agents of the state.
Any time you have a group of people which is regarded as medically deficient, and which may want to reject the treatment medical experts decide is medically beneficial for them and is also seen as advantageous for the larger society, you get the question of when the government, acting to minimize the extent to which society's "usses" have to live with the existence of "thems" in their midst, can "treat" people against their will.
Heads up, y'all: the Ragged Edge subscriber list includes more than a handful of people who fit that description.
The medicalized version of the individual model of disability -- what a lot of people call the medical model -- guarantees that this is a disability rights issue. If you're not on the front lines of this one, count yourself lucky: not that you're not one of those people (thank you, Lucy Gwin of Mouth Magazine, for that term), but that the last dam between you and the floodwaters yet holds.
When 'no' doesn't mean 'no': a little background
Back in '97, Dr. Sell was charged in federal court with submitting false claims to Medicaid and private insurance companies. Sixty-two counts of fraud, one of money-laundering.
Sell had previously sought psychiatric help and had voluntarily taken psychiatric drugs, including the antipsychotic Haldol. He found the side effects of Haldol intolerable, and does not wish to take antipsychotics again. (I've been force-fed a couple of antipsychotics, though not Haldol, and I've watched people being Haldolled into oblivion: his attitude makes sense to me.)
The legal wrangling took awhile and then some, with both sides requesting and receiving delays; but by April 1999, Sell had been declared incompetent to stand trial -- he'd been diagnosed with "delusional disorder, persecutory type" -- and sent to the United States Medical Center for Federal Prisoners in Springfield, Missouri.
In June 1999, the Medical Center held an administrative hearing and determined that it was acceptable to forcibly drug Dr. Sell. Sell challenged that determination.
In August 2000, the United States Magistrate Judge authorized forced drugging, saying Sell was dangerous. Although he was not considered dangerous at the time of the administrative hearing, the government now claimed he was. Among the facts reportedly given to demonstrate dangerousness: he addressed a nurse by her first name.
In April 2001, the District Court ruled that he was not dangerous; but forced drugging was authorized anyway, solely for the purpose of restoring his competency to stand trial. Sell appealed.
In March 2002, the Court of Appeals for the 8th Circuit affirmed the District Court's decision with a two-to-one majority. Sell -- no surprise here -- appealed.
Which is how Dr. Sell's case finally ended up on the Supreme Court docket for the Spring of 2003.
The legal standard
Judge Gerald Heaney wrote the majority opinion for the 8th Circuit (Judge Pasco Bowman signed the opinion; Judge Bye dissented). He identifies a three-part test to determine whether forcible medication may be sanctioned by the courts:
"First, the government must present an essential state interest that outweighs the individual's interest in remaining free from medication. . . . Second, the government must prove that there is no less intrusive way of fulfilling its essential interest. . . . Third, the government must prove by clear and convincing evidence that the medication is medically appropriate."
Prosecution: an essential state interest
Judges Heaney and Bowman conclude that the government's interest in prosecuting Dr. Sell outweighs his interest in remaining free of antipsychotics. Judge Bye disagrees -- there are some crimes prosecution of which would, he think, tip the balance. But not these.
Sixty-three counts of fraud and money-laundering isn't exactly jaywalking, but if you measure the importance of the prosecution by the sentence the defendant stands to get, this isn't anywhere near up there with the violent crimes whose prosecution Bye thinks outweighs defendants' right to be free of unwanted medication.
But the government can't go to trial until the defendant is judged competent. (Sell, on the other hand, is unlikely to be released until the government can go to trial.) So if the government's interest in prosecuting him outweighs Sell's interest in remaining drug-free, the first hurdle is cleared and the next question is: how do you make him competent?
Dueling experts: a less intrusive way?
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.)
And Dr. Goldstein, forensic psychologist at the Federal Bureau of Prisons Institutional Metropolitan Correctional Center, has written in a report that typically drugs don't work in delusional disorder.
These dueling experts reflect disagreements within the psychiatric community as to the value of antipsychotic medication to treat delusional disorder.
But in the absence of any suggestion for an alternate method to restore Dr. Sell's competency, the 8th Circuit says that the best bet is good enough, and the second hurdle has been cleared.
On to the question as to whether antipsychotics are "medically appropriate."
'The sharp end of a needle': medical appropriateness
Reading the 8th Circuit opinion, we discover that "Medication is medically appropriate if: (1) it is likely to render the patient competent . . . ; (2) the likelihood and gravity of side effects do not overwhelm its benefits . . . ; and (3) it is in the best medical interests of the patient. . . ."
If we learned anything from the dueling experts, it's that we don't know how likely Dr. Sell is to be judged competent if he is drugged. Dr. DeMier has apparently used antipsychotics on two patients diagnosed with delusional disorder in the hopes of rendering them competent; his record is one for two. Dr. Wolfson's record is three for four. Six people is too small a sample to conclude anything.
Then there are the side effects. Sell believes, based on his experience with Haldol, that the gravity of antipsychotics' side effects does overwhelm any benefits, but he's not the one who gets to decide.
Acknowledging that there are significant side effects associated with the drugs they are considering using on Sell, DeMier and Wolfson testified that there are newer antipsychotics whose side effects are less severe. But they won't be using 'em: you've got to swallow them, and forcibly medicating people works better with injection.
Then there's the "best medical interest" standard.
"Some of our members choose to take prescribed psychiatric drugs, and that's their voluntary choice," says David Oaks, executive director of the psychiatric survivor organization Support Coalition International. "But many of our members have been on the 'sharp end of a needle' during involuntary psychiatric drugging and we know what it's like. Forced psychiatric drugging is profoundly disempowering and intrusive. Forced drugging can cause permanent brain damage, and it can even kill.
"Recent medical evidence shows some of the more powerful psychiatric drugs can cause persistent structural brain change, so this puts certain types of forced drugging in the same general category as forced psychosurgery. No should mean no."
But the 8th Circuit decision makes it clear that the judges figure competency is a good thing and some hope's better than none, and they're willing to mandate an unproved approach even when, as they acknowledge, there is the chance of severe, irreversible, and even fatal side effects.
'If it isn't voluntary, it isn't treatment': what's at stake
Do you really want Charles Sell running around loose? Bzzz! Wrong question.
Do you really want Charles Sell to go untried? Bzzz! Wrong question.
The possibility of a dentist roaming the streets free to wantonly address people by their first names may well strike terror into your heart. (In fairness, Sell allegedly planned or did a couple of other things before he got locked up that are more disturbing, though if there were a clear-cut case to be made for dangerousness, the "inappropriate familiarity" issue would probably never have made it into court.) But it's the principle and the precedent, not the person, that should concern us.
To Sell and his lawyers, this case is about Charles Thomas Sell. To the rest of us -- including, we must fervently hope, the Supreme Court justices -- it's about us, about whether the Court's going to keep destroying the sandbags our activists are using to shore up overburdened dams and safeguard those of our rights that are acknowledged at all. The right question is: when is it acceptable for the government or its agents to force people to accept medical "treatment"?
You have the right to a fair trial if you're charged with a crime. Can you get a fair trial when you're drugged against your will?
You have the right to free speech. Is that right meaningful if the government can intervene to change your thoughts?
Prosecuting an incompetent defendant is widely viewed as denying that defendant a fair trial, because such defendants cannot participate adequately in their own defense. But those who oppose using forced drugging to ensure a fair trial argue that the drugs are often so overwhelming as to make adequate participation in your own defense impossible as well.
"The idea that forced drugging can 'clear up your thinking' so you can better defend yourself during a trial is especially bizarre," says Oaks. "The myth of the benevolence of psychiatric drugs is a kind of magical thinking that many judges have bought into, because of psychiatry. Several of our members were forcibly drugged during trial and it blitzed their cognitive abilities so much they could barely stay focused or communicate."
Moreover, the drugs affect how you look, how you move, how you react to things: Sell is not the first to complain that being forced to appear before jurors in a medicated state will unjustly affect their opinions of him.
"If forced drugging during trial is sanctioned," says Oaks, "then once more it's obvious that psychiatry and the judicial system have an especially serious and dangerous mental disorder."
The 8th Circuit opinion answers that we can't know until he's drugged what the effects will be, and therefore hands questions about whether he can receive a fair trial back to the lower courts to address after Sell is medicated.
The First Amendment argument is even more disturbing: how can your speech be free from government control if the government can forcibly administer drugs to change the thoughts that prompt you to speak in the first place? This is precisely the point made by attorney Richard Glen Boire of the Center for Cognitive Liberty & Ethics, in a brief filed in support of Dr. Sell.
Other people's prejudices
Other people's prejudices are always easier to take when they line up with our own. Ours are invisible to us; and other people giving voice to our own certainties just sound like truthtellers.
In the last issue of Ragged Edge I mentioned Judith Lynn Failer's recent book Who Qualifies for Rights? (see "Cui Servire Est Regnare: A Review Essay" in the Jan./Feb., 2003 Ragged Edge). Failer identifies six standard images of people labeled "mentally ill" -- she's talking about civil commitment, not criminal courts, but her points are instructive nonetheless. There's the bad family member, the economically deficient person, the sufferer, the nonsurvivor, the danger waiting to happen, and the imminent danger.
Dr. Sell stands accused of being a bad community member (ripping off Your Tax Dollars, raising Your Insurance Premiums); he was found legally deficient (incompetent to stand trial).
He has been represented as an imminent danger (who must be controlled); when the District Court concluded he was not, the government claimed he was a danger waiting to happen (who must be preemptively controlled).
The state's been relatively unsuccessful with that one, but no matter: they've done better at branding him a sufferer in need of medical attention (forced drugging, which is the same thing they were going to use to control him), and that'll do for the state's present purpose.
Apparently, the state does expect him to survive.
In other words, as Dr. Sell opposes forced drugging he is described in pretty much the same terms that are typically used to justify forced "treatment" generally. He sounds crazy; and we all know how to handle crazy people, yeah?
The danger Ted Chabasinski identified -- the danger that this case is just gonna give more ammunition to those committed to the steady erosion or the rapid destruction of our rights -- exists precisely because so many in our society are so easily convinced. Precisely because so many have bought into what David Oaks calls "magical thinking." Precisely because Judith Lynn Failer's "legal images" are used to ease thinking about psychiatric patients and potential psychiatric patients, and to reinforce the stereotypes on which they are based. Precisely because so many regard these characterizations as truth.
Decades from now, we may, as a society, regard the prejudices drawn on in the Charles Sell case with the same discomfort we now feel when we think of Carrie Buck, the woman in whose 1927 case the Supreme Court authorized forced sterilization for eugenic reasons.
"Three generations of imbeciles are enough," thundered Oliver Wendell Holmes as he considered the grave threat the public welfare posed by "those who are manifestly unfit" and defended society's right to enlist doctors and institutions to preempt that threat.
Our prejudices have changed since Buck v. Bell. We have come to regard as obvious falsehood what our ancestors regarded as obvious truth; and as states begin at last to apologize for forced sterilization, we must count it as a good thing that we have realized the mistake we made 75 years ago.
But it would be a better thing if we could count on the Court not to make the same mistake again.
Cal Montgomery lives in Chicago, where she currently has the right to make her own decisions about whether or not to accept medical treatment. And she's very, very grateful. Montgomery's recent stories for Ragged Edge have included A Hard Look at Invisible Disability and Critic of the Dawn.
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