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Citation: Catherine L. Falvey, Constitutional Law - State Authorization of Forcible Administration of Depo-Provera Invalid under Colorado Statutory Law, 13 J. HEALTH & BIOMEDICAL L. 171 (2017). Provided by: Moakley Law Library at Suffolk University Law School

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Journal of Health & Biomedical Law, XIII (2017) 171-183 ©20 17 Journal of Health & Biomedical Law Suffolk University Law School

Constitutional Law-State Authorization of Forcible Administration of Depo-Provera Invalid Under Colorado Statutory Law-People ex rel. C.J.R. No. 16CA0915, 2016 Colo. App. LEXIS 1276 (Colo. Ct. App. Sept. 8, 2016).

Catherine L. Falvey*

Colorado law gives the court responsible for admitting a patient into a state facility the authority to involuntarily administer medication if that patient refuses to accept it.' The Colorado Court of Appeals in People ex rel. C.J.R2 addresses the Denver

Probate Court's authorization of chemical castration by means of involuntarily administering Depo-Provera to a male patient exhibiting inappropriate and aggressive sexual behavior. The appeals court held that the probate court could not authorize the state facility to forcibly administer Depo-Provera to the patient, reversing the probate court's initial ruling.'

*J.D. Candidate, Suffolk University Law School, 2018; Elon University, 2015. Ms. Falvey may be contacted at [email protected]. 1 See COLO. REV. STAT. § 27-65-111(5)(a) (2016). The court has the authority to accept a petition by a treating physician and to enter an order that the patient must accept treatment and if they do not, that the treatment be forcibly administered to that patient. Id. 2 People ex rel. C.J.R., No. 16CA0915, 2016 Colo. App. LEXIS 1276 (Colo. Ct. App. Sept. 8, 2016). Id. at *1. While physicians are statutorily permitted to administer medication against a patient's will, that medication must be for psychiatric treatment of the mental illness the patient is suffering from. Id. at *11-*12. 172 JOURNAL OF HEALTH & BIOMEDICAL LAW VOL. XIII ISSUE 1

C.J.R., a sixty-five year old man, is a long-term patient at the Colorado Mental

Health Institute at Fort Logan, where he was treated for a form of psychosis identified as schizoaffective disorder.4 C.J.R. regularly engaged in sexually inappropriate behavior but would typically comply when asked to stop.5 The treating physician prescribed

Clozaril, an antipsychotic medication, but after C.J.R. suffered a grand mal seizure doctors decided to cease this particular treatment.6 After cessation of Clozaril, C.J.R.'s inappropriate behavior worsened, at which time his psychiatrist prescribed Depo-

Provera.7

C.J.R. refused voluntary treatment with injectable Depo-Provera.A Depo-

Provera is a female contraceptive that has been used to decrease sexually aggressive and predatory behavior in males.' The facility sought authorization from the Denver

4 Id. at *2. C.J.R.'s illness causes him to have hallucinations about dead babies and to believe that his food and medications are contaminated. Id. Schizoaffective disorder may often manifest itself as "disorganized, thought patterns and speech., and behavior." Id. SCJ.R, 2016 Colo. App. LEXIS 1276, at *2. C.J.R. masturbated in front of staff and emerged naked from his room into the main ward where other patients were. Id. 6 See id. at *2-3 (explaining doctors' concern that Clozaril was causing seizures). After doctors discontinued Clozaril, they continued treatment with other antipsychotics. Id. at *3. 7 People ex rel. C.J.R at *3. C.J.R. began soliciting staff members for sex, grabbed a female nurse near her breasts and genitals, and became violent and aggressive. Idat *2. The psychiatrist chose to prescribe Depo-Provera, an injectable female contraceptive, because it has been shown to decrease libido, in an effort to decrease C.J.R.'s sexual urges. Id. at *4. Depo-Provera has sometimes been used in males to reduce sexually inappropriate behavior by using the hormone progesterone to decrease testosterone, through a process that is called chemical castration. Id. FDA has not approved Depo-Provera for chemical castration but once a drug is FDA approved for any use, it can be prescribed for another purpose at the licensed prescribing physician's discretion. People ex rel. CJ.R at *4-*5. Depo-Provera has been used in males to prevent the hypersexual behavior that C.J.R. has demonstrated. Id. at *4. 8 Id at *4. See COLO. REV. STAT. § 27-65-111(5)(a)(2010) (explaining the statutory authority for physicians to administer medication without consent of patient). 9 People ex rel. CJ.R at *4. Depo-Provera's primary ingredient is the synthetic hormone medroxyprogesterone acetate. Ambrosini v. Labarraque, 101 F.3d 129, 131 (D.C. Cir. 1996) (describing chemical composition of Depo-Provera); Walter J. Meyer III, M.D. et al., Depo Provera Treatmentfor Sex Offending Behavior: An Evaluation of Outcome, 20 J. Am. ACAD. PSYCHIATRY & LAW ONLINE 249 (1992) (providing further explanation of medroxyprogesterone acetate and use in reducing sex drive). This medication has been used to reduce recidivism rates and found that MPA treatment was effective in preventing the behavior it is aimed at. Id. at 257. 2017 JOURNAL OF HEALTH & BIOMEDICAL LAW 173

Probate Court to administer the drug intravenously to C.J.R. without his consent.10 The

Probate Court granted the request." In deciding this case, the Colorado Court of

Appeals relied on legislation from the General Assembly to reverse the probate court's order to administer Depo-Provera involuntarily to C.J.R. 12 The dissent contended that

C.J.R. was dangerous because of his mental illness. 3 Judge Bernard opined that the moral imperative of protecting the employees and other patients in the ward outweighs the need to protect C.J.R.'s rights against forcible administration of Depo-Provera. 14

Colorado law authorizes the court of the jurisdiction in which the treating facility of a patient is located to accept petitions by treating physicians to impose

Assembly of Colorado also provides guidelines for the treatment of people with mental illnesses." People ex rel. CJ.R. is unique and does not fit perfectly into the guidelines

1o C.J.R, 2016 Colo. App. LEXIS 1276, at *1-*2 (petitioning Court to allow administration of Depo-Provera to chemically castrate C.J.R.). 1 Id. at *5. The court used People t. Medina which produced a four part test to determine the authority to forcibly administer medication. Id at *6. This four part test requires the person requesting to involuntarily administer medication to prove by clear and convincing evidence that:

(1) the patient is incompetent to effectively participate in the treatment decision; (2) treatment by antipsychotic medication is necessary to prevent a significant and likely long-term deterioration in the patient's mental condition or to prevent the likelihood of the patient causing serious harm to himself or others in the institution; (3) a less intrusive treatment alternative is not available; and (4) the patient's need for treatment by antipsychotic medication is sufficiently compelling to override any bona fide and legitimate interest of the patient in refusing treatment.

People v. Medina, 705 P.2d 961, 963-964 (Colo. 1985). 12 CJ.R, 2016 Colo. App. LEXIS 1276, at *13-*14 (holding that the forcible administration order must be reversed). 13 Id. at *26 (Bernard, J., dissenting). 14 Id. at *26 (noting the strong moral reasoning behind protecting general population of the ward). 2 1s COLO. REV. STAT. § 7-65-101(1)(a)-(g) (2016). Section (a) of the statute aims to give treatment suited to the needs of the patient in a humane way with respect to the patient's dignity and personal integrity. Id. at § 27-65-101(1)(a). This statute indicates that its provisions may be liberally construed. Id. at § 27-65-101(2). 174 JOURNAL OF HEALTH & BIOMEDICAL LAW VOL. XIII ISSUE 1 provided by case law and statutes.16 One aspect of C.J.R.'s case that makes it unique is that he was civilly committed and not criminally incarcerated.17

Medina utilized a four-factor test to determine whether a physician could treat a patient against their will." First, the court asks if the patient is not competent enough to make a decision about their treatment on their own. 9 Second, the court must make a

16 See Medina, 705 P.2d at 963 (explaining that the central issue is nonconsensual treatment with antipsychotics). Medina does not address nonconsensual treatment with antiandrogens like Depo-Provera. Id. 1 People ex rel. CJ.R. at *2. In one Iowa case, the State Supreme Court affirmed a judgment based on the holding that there exists a rational basis for distinguishing between mentally ill sex offenders and other people with mental illness. State v. Williams, 628 N.W.2d 447 (Iowa 2001) (citing Iowa statute distinguishing these two types of individuals). The Iowa Code outlines procedure for the commitment of mentally ill people under chapter 229 and outlines the commitment guidelines for sexually violent predators under chapter 229A. IOWA CODE ¶ 229 (2016); IOWA CODE § 229A (2016). The Iowa Constitution guarantees equal protection to all citizens of the state, requiring all similarly situated people to be treated the same. Williams, 628 N.W.2d at 452. The defendant challenged the classification based on mental "abnormality". Id. The court justifies the distinction between mentally ill sex offenders and other mentally ill people by explaining that there is a percentage of convicted sex offenders who do not suffer from any mental illness that would make them eligible for the treatment indicated in s. 229. Id. at 453. Those committed under 229A are considered sexually violent predators and are typically said to "have antisocial personality features that are unamenable to existing mental illness treatment modalities and that render them likely to engage in sexually violent behavior." § 229A.1. The legislature indicates that the involuntary commitment procedures under s. 229 are inadequate to protect society from the threat of sexually violent predators. Williams, 628 N.W.2d at 453 (citing IOWA CODE § 229). Mental illness does not predispose the patient to commitment of sexually violent acts. Williams, 628 N.W.2d at 453. See also U.S. CONST. amend. XIV, 5 1 (affording citizen's equal protection under laws of the United States). But see Goedecke v. State, Dep't of Insts., 198 Colo. 407, 412-13 (1979) (discussing similarity of mental health commitments and criminal proceedings). Goedecke states "[t]hese cases declare that the deprivation of liberty in mental commitment proceedings is similar to the deprivation of liberty in criminal proceedings, and consequently, the same due process considerations apply." Id. This refers to cases that concern the civil commitment of defendants with mental health issues that contain a question of whether a transcript should be provided at the state's expense. Id. at 413. The Goedecke court determines that the infringement upon the defendant's liberty is so extreme as in a criminal case that the defendant must be protected by due process and the state must be the party to provide a transcript. Id. The purpose of this was to avoid a "serious deprivation of liberty". Id. at 412. 8s See Medina, 705 P.2d at 973. The Medina test only addresses the administration of antipsychotic medication for psychiatric treatment. Id. 1 Id. The fact that the patient was involuntarily committed does not establish incompetency on its own. Id. See Goedecke, 198 Colo. at 411 (explaining practice of receiving informed consent from patient for treatments with harmful side effects). The court must be satisfied that the patient's judgment has been so impaired he cannot adequately make decisions regarding his 2017 JOURNAL OF HEALTH & BIOMEDICAL LAW 175 determination that the unwanted treatment is necessary for the patient to avoid long- term negative effects to their health as well as to prevent the patient from becoming a danger to himself or herself or others. 20 The third part of the test requires the court to determine that a less intrusive alternative is not available. 21 Lastly, the court examines whether the patient's need for treatment is sufficiently compelling to outweigh the patient's interest in refusing treatment. 22

The United States Food and Drug Administration ("FDA") has approved

Depo-Provera as an injectable contraceptive for women.23 A later case explains that once the FDA approves a drug, a physician can use that drug for an off-label use at their

health. Id.; Schloendorff v. Society of New York Hospitals, 211 N.Y. 125 (1914) (discussing self- determination for medical procedures). According to the Schloendorff court "every human being of adult years and sound mind has a right to determine what shall be done with his own body." Schloendorff 211 N.Y. at 129. 20 See Medina, 705 P.2d at 973. An interest in institutional security is not sufficient to fulfill this requirement. Id. at 974. The state must establish the likelihood that the patient will cause grave harm to himself or other patients if not treated with antipsychotic medication. Id. The court recognizes that the risks antipsychotic medications pose to patients are too high to subject patients to them unnecessarily. Id. 21 Id. at 973. If an alternative treatment that would cause less harm to the patient is available to the treating physician, high-risk antipsychotic medications should not be used. Id. at 974. See also In re Detention of Thorell, No. 42237-5-1, 2000 Wash. App. LEXIS 319, at *4-*5 (Ct. App. Feb. 22, 2000) (upholding commitment of sexually violent predator as constitutional). Although this case discusses commitment and not treatment, the Court still considers the issue of a less restrictive alternative when determining what to do with the person who committed the offense. Id. This sheds light on courts' responsibility to keep the best interest of each person in mind when making a decision. Id. 22 Id. Medina, 705 P. 2d at 973. The court places a high value on the patient's personal dignity and bodily integrity. Id. See also People ex rel. Strodtman, 293 P.3d 123, 128 (2011) (citing a need to respect the patient's due process rights). But see People v. Collins, 110 Cal. App. 4,h 340 (Cal. Dist. Ct. App. 2003) (deciding even though defendant was on antiandrogens it was not safe to release him). 23 Colille t. Pharmacia & Upjohn Co. LLC, 565 F. Supp. 2d 1314, 1317 (N.D. Fla. 2008) (describing Depo-Provera as a safe prescription contraceptive). The warnings in the physician information section describe possible side effects. Id. But see9 Karen Harrison, Legal and Ethical Issues when using AntiandrogenicPharmacotherapy with Sex Offenders, 3 SEXUAL OFFENDER TREATMENT, no. 2, 2008, at 1, 2 26 (describing severe side effects including hypertension, weight gain, blood clots, diabetes, and osteoporosis); Meyer, supra note 9, at 254. 176 JOURNAL OF HEALTH & BIOMEDICAL LAW VOL. XIII ISSUE 1

2 own discretion. 4 In past cases regarding the use of Depo-Provera on male prisoners, appellate courts have chosen not to answer the question on constitutional grounds. 25 In another Colorado case, the court decided that a patient had a right to decline treatment by a drug with negative and harmful side effects unless there was a finding that the patient was so incompetent as to not be able to make a clear, informed decision.26

Chemical castration has been offered to sex offenders as an alternative to further imprisonment.27 Some states make chemical castration compulsory after multiple offenses. 28 Castration is a controversial tactic due to side effects and

24 United States r. Caronia, 703 F.3d 149, 153 (2d Cir. 2012) (authorizing licensed physicians to use medication for non-listed uses per their own discretion). 25 People P. Gauntlett, 352 N.W.2d 310, 314 (Mich. Ct. App. 1984). The court in this case held that they would not decide an issue on constitutional grounds when there was an alternative way to answer the question at hand. Id. 26 Goedecke, 198 Colo. at 408411. The majority notes that mental illness is not a crime and that hospitalization for that type of illness should not be mistaken for incarceration. Id. See Bruno v. State, 837 So. 2d 521 (Fla. Dist. Ct. App. 1st Dist. 2003) (declining to allow surgical or chemical castration even as punishment for sexual offenses). 27 Thomas Douglas et al., Coercion, Incarceration,and Chemical Castration:An Argumentfrom Autonomy, 10 J. BIOETHICAL INQUIRY 393 (2013) (discussing chemical castration of sex offenders already incarcerated for crimes committed). Castration by chemical means has been offered in the interest of preventing recidivism in sexual predators. Id. The goal of castration is to lower testosterone to prepubescent levels to temper a person's sexual urges. Id. 28 Karen J. Rebish, N pping the Problem in the Bud: The Constitutionaly of Calfornia'sCastration Law, 14 N.Y.L. SCH. J. HUM. RTS. 507, 511-12 (1998) (outlining California's castration statute). After a first offense against a victim of thirteen years or younger, a sex offender has the option to undergo chemical castration, but after a second offense of the same nature, the offender must undergo castration. Id. at 510. Chemical castration is most commonly achieved through an injection of medroxyprogesterone acetate, usually produced under the brand name Depo- Provera. Id. at 516. See also Karen Harrison, Legal and Ethical issues when using Antiandrogenic Pharmacotherap with Sex Offenders, 3 SEXUAL OFFENDER TREATMENT, 2008, http://www.sexual- offender-treatment.org/2-2008_01.html (citing antiandrogen use in California and Montana as mandated by legislature); Kris W. Druhm, Comment, A Welcome Return to Draconia: CalforniaPenal Law 645, The Castrationof Sex Offenders and the Constitution, 61 ALB. L. REV. 285, 289 (1997) (giving background on interest in surgical and chemical castration for people guilty of sex offenses). There have been constitutional arguments against chemical castration on the basis of cruel and unusual punishment and violation of due process, among others. Id. at 290. The first attempts at the imposition of chemical castration as a condition of probation were met with backlash, due in part to a lack of statutory support of the experimental procedure. Id. at 292. See also Meyer, supra note 9, at 256 (explaining recidivism rates in sex offenders and effect of Depo-Provera treatment on those individuals). The author cites one study in which individuals who maintained treatment 2017 JOURNAL OF HEALTH & BIOMEDICAL LAW 177 implications of constitutional provisions such as the Due Process Clause of the Fifth

Amendment and the Eighth Amendment, which prevents the infliction of cruel and unusual punishment. 29 Doctors and lawmakers from the United Kingdom and other

European nations have also explored the use of chemical castration in sex offenders. 0

The ethical concerns for this method of treatment are widely discussed in various forums.,3

The court in People ex rel. C.J.R addresses several different precedents in its decision.3 2 The court in Medina established a four-factor test to determine whether the person administering treatment can force that treatment against the patient's will. 3 The

had a recidivism rate of 15%, whereas individuals who discontinued treatment had a recidivism rate of 77%. Id. at 256. 29 See Druhm, supra note 28;. See also U.S. CONsT. amend. V (affording citizens of the United States due process of the law); U.S. CONST. amend. VIII (protecting citizens against cruel and unusual punishment that offends their bodily integrity); William Green, Government Morehead State UNIV., The Food and Drug Administration and the Limits of Contraceptive Drug Risk: The Experimental and Criminal Justice Use of Depo-Provera (Aug. 30, 2014), https://papers.ssrn.com/sol3/papers.cfm?abstractid=2303163. 30 See Don Grubin et al., Chemical Castrationfor Sex Offenders, THE BMJ, Jan. 12, 2010, http://www.bmj.com/content/340/bmj.c74 (exploring medical efficacy of antiandrogens as part of rehabilitation for sex-related offenses and underlying causes). The use of strong hormonal medication in sex offenders has clear social implications and requires doctors to consider their role in protecting the public and how that should fit in with their responsibility to the safety of the patient. Id. From a medical perspective, antiandrogens used in chemical castration are useful in reducing the biological manifestations of sex offenders' urges and impulses. Id. The author also cites the use of other psychiatric medications such as selective serotonin reuptake inhibitors (SSRIs) to treat the psychological aspect of the illness, mainly the ruminative, or obsessive nature of the patient's thoughts. Id. 3 See Harrison,supra note 28, at 3 (listing ethical concerns ranging from causing negative health repercussions to limiting patient choice). The author questions whether it is ethically acceptable to place a patient or criminal in a situation where he has to choose between a course of potentially harmful medication or an extended prison sentence. Id. at 3. See also Grubin, supra note 30 (arguing that it's unfair to force someone to choose between prison and body-altering medication). 32 Ex rel. C.J.R at *5, *10 (using People t. Medina and state legislature). See also COLO. REV. STAT. 27-65-101(1)(a) -(g); COLO. REV. STAT. § 27-65-111(5)(a); People V. Medina, 705 P.2d 961 (1985) (providing test for allowing forcible administration of medication). 33 Medina, 705 P.2d at 973. The four-factor test assesses the patient's mental competency, likelihood of causing harm, gravity of that patient's illness, and the availability of less intrusive treatment methods. See id. (expanding on four-factor test and its requirements). 178 JOURNAL OF HEALTH & BIOMEDICAL LAW VOL. XIII ISSUE 1

People ex rel. C.J.R court ultimately chose not to use Medina in its analysis.3 4 Instead, it relies on state statutes to make its decision." The General Assembly of Colorado gives guidelines for the treatment of people with mental illness. 6 Because the probate court wanted to force treatment on C.J.R. to curtail his sexually aggressive behavior rather than to care for his underlying mental illness, the court found that it could not authorize the administration of Depo-Provera.

The People ex rel. CJ.R court addresses a mental health issue that has not been widely litigated." Because C.J.R. was institutionalized for mental illness rather than

34 People ex rel. C.J.R. at *13. The court explains that while Medina's test could be applied to the authorization of other psychiatric treatments, they do not believe it can be applied to the forcible administration of synthetic hormone similar to progesterone. Id. The court states that they do not believe the General Assembly's authorization to administer medication against a patient's will gives unrestricted authority to administer any medical treatment. Id. 3s Id. at *14 (finding that Medina court's test only applied to administration of psychiatric medication). 36 See COLO. REV. STAT. § 27-65-101 (outlining the purposes of the article in terms of mental health patients and their treatment); COLO. REV. STAT. § 27-65-111(5)(a) (explaining that court of proper jurisdiction has authority to accept petition by psychiatrist and to authorize treatment). The statutes focus on preserving the patient's personal dignity and integrity. C.R.S. ¶ 27-65-101. The court in the case-in-chief relies on this statutory scheme in its decision to reverse the authorization of chemical castration of C.J.R. See People ex rel. C.J.R at *15. See also Goedecke 198 Colo. at 411. The court explained that mental illness is not a crime and hospitalization for illnesses of that nature is not synonymous with imprisonment. Id. For that reason, the Goedecke court held that a patient maintains the right to refuse treatment with a drug that has a risk of causing them harm. Id. The case-in-chief utilizes the logic in Goedecke combined with the statutory provisions in Title 27 to explain that chemical castration offends C.J.R.'s dignity and therefore cannot be authorized by the court. People ex rel. C.J.R at *15. See also Strodtman, 293 P.3d at 128 (maintaining that patients' due process rights must be respected). 7 CJ.R, 2016 Colo. App. LEXIS 1276, at *16. The courts in Colorado do not have the authority to mandate chemical castration for a patient in a mental health facility. Id. 38 See generaly C.J.R, 2016 Colo. App. LEXIS 1276, at X*. C.J.R.'s situation is unique because he was committed to a state mental health facility due to mental illness, and not incarcerated for committing a sexual offense. Id. at *2. Chemical castration has typically been allowed or mandated for people convicted of sexual offenses, not mentally ill people who behave in a sexually inappropriate way as a result of their illness. See, e.g., Bruno, 837 So.2d, at 522 (citing Florida statute authorizing medroxyprogesterone acetate (MPA) treatment on defendants convicted of sexual battery); FLA. STAT. ANN. § 794.0235 (LexisNexis through 2016 legislation) (authorizing MPA treatment on defendants convicted of sexual battery). This statute only authorizes MPA treatment if the defendant has been convicted of a sexual battery and is 2017 JOURNAL OF HEALTH & BIOMEDICAL LAW 179 imprisoned for sexual crimes, other cases allowing the forcible administration of Depo-

Provera are not exact parallels and are not binding precedent on CfJ.R. 9 Most cases involving the administration of Depo-Provera to men are the result of sexual offenses.40

It is difficult to say whether the court made the appropriate decision due to the nature of the patient's illness and the circumstances surrounding his sexually inappropriate behavior.41 In a constitutional sense, the court made the correct decision.42

The court makes an effort to reconcile its constitutional responsibility with its duty to protect the people who are affected by C.J.R.'s behavior.43 The decision is not quite a departure from existing law, but rather the decision is made on the basis that the central issue differs enough from Medina that the holding did not apply.44

contingent upon a finding by a physician that the defendant is an appropriate candidate for treatment of this nature. § 794.0235. 3 See Bruno, 837 So.2d, at 522 (describing the defendant convicted of lewd and lascivious assault); Hope v. Commonwealth, No. 2013-CA-001869-MR, 2015 Ky. App. Unpub. LEXIS 13, at *1, 2 (Ky. Ct. App. Jan. 9, 2015) (explaining that the defendant was indicted for several counts of sexual abuse and similar crimes); Collins, 110 Cal. App. 4th Supp. at 345 (deciding conditions of release for a sexual predator defendant being treated with Depo-Provera). 40 See Hope, 2015 Ky. App. Unpub. 13, at *1 (giving example of typical conduct that is punished with chemical castration). 41 Ex rel. C.J.Rh, at *3-*4 (explaining background of C.J.R.'s situation). [Turn this into a complete sentence] hospital's reason for wanting to treat with Depo-Provera. 42 U.S. CONsT. amend. VIII; U.S. CONsT. amend. V (outlining citizens' rights to bodily integrity and freedom from cruel and unusual punishment). The Constitution protects citizens from cruel and unusual punishment and chemical castration would fit this category. U.S. CONST. amend. VIII. A citizen's right to due process is also protected by the Constitution, and forced administration of medication falls under this clause because it takes away the patient's right to choose what happens to their body. U.S. CONST. amend. V. 43 Ex rel. C.J.iR, at *22-*23 (acknowledging state's interest in protecting both patients and doctors in ward as well as C.J.R.). The court relies heavily on evidence of the efficacy and potential risks of treatment with Depo-Provera and the severity of C.J.R.'s behavior to make their decision. Id at *23. See also Thorellat *4-*5. Commitment of a sexually violent predator is at issue in this case rather than treatment, but the court still must reconcile the convicted person's rights against a duty to protect the public. Id. 44 Medina, 705 P.2d at 963 (insert parenthetical). Medina provides a useful test for determining when a doctor can force a patient to receive medication he has not consented to. Id. Courts can only read the case to provide guidelines on the forcible administration of psychiatric drugs for the treatment of psychiatric illnesses. Id. 180 JOURNAL OF HEALTH & BIOMEDICAL LAW VOL. XIII ISSUE 1

In a constitutional sense, the court does have a duty to protect the individual liberties of each citizen. 45 The public's safety, however, should also be a primary concern. 46 The practice of chemical castration on a patient such as C.J.R. is problematic for a number of reasons.47 First, C.J.R. has never been imprisoned for committing a sexual offense. 48 Next, because his sexually inappropriate behavior is the result of a completely unrelated mental illness, schizoaffective disorder, there are other alternatives that must be explored. 49 The court did not err in reversing the probate court's order to administer Depo-Provera.s0 As the opinion highlights, the state failed

45 See U.S. CONST. amend. VIII; U.S. CONsT. amend. V (outlining citizens' rights given by Constitution to maintain personal autonomy). See also Ryan Cauley, Is Chemical CastrationA Progressive or Primitive Punishment? Balls Are in Your Court, Iowa Legislature, 17 J. Gender Race & Just. 493, 501 (2014). "Critics of chemical castration generally argue that it violates the Eighth Amendment of the United States Constitution's prohibition on cruel and unusual punishment." The punishment of the mentally ill and other vulnerable populations maintains the very extreme punishment the public aspires to prevent. 46 People Ex rel CJ.R, at *22 (describing state's legitimate interest in protecting public safety). The court must determine that any objection from the patient is "bona fide and legitimate" and if it is, the court must then weigh that objection against the protection of the safety of other members of society. Id. If the need for medication outweighs the legitimacy of the patient's refusal, then the interest in protecting the public prevails. Id. See also John F. Stinneforda, Incapacitation Through Maiming: Chemical Castration, The Eghth Amendment, and the Denial Of Human Dgnity, 3 U. St. Thomas L.J. 559 (2006). The Supreme Court has provided limited instruction on measuring chemical castration laws in relation to the Eighth Amendment. 47 See Harrison,supra note 28 at 2 (listing harmful side effects of Depo-Provera). The nature of the side effects that result from treatment with Depo-Provera bring up certain ethical issues, specifically the concern that the patient may not understand what he/she is consenting to when presented with Depo-Provera as an option. Id. 48 People Ex rel C.J.R, at *2 (highlighting C.J.R.'s commitment to Colorado Mental Health Institute due to his clinical psychosis). 49 See Ex rel. CJ.R, at *2 (identifying cause of C.J.R.'s commitment to be schizoaffective disorder). Civil commitment is similar to, yet legally distinguishable from criminal incarceration. Goedecke, 198 Colo. at 412. Courts are concerned about the deprivation of liberty and apply a high standard of due process to mental health commitments. Id. at 412. so See Ex rel. CJ.R, at *24 (reversing probate court's order authorizing involuntary administration of Depo-Provera). See also U.S. CONST. amend. VIII (protecting from cruel and unusual punishment); U.S. CONST. amend. V (protecting citizens' right to due process); Matthew V. Daley, Note, A FlawedSolution to the Sex Offender Situation in the United States: The Legality of Chemical Castrationfor Sex Offenders, 5 IND. HEALTH L. REV. 87, 95 (2008). Scholars have reached this conclusion even in cases involving convicted sex offenders. See id. (concluding chemical castration is a cruel and unusual punishment rather than a treatment). But see Daniel L. Icenogle, 2017 JOURNAL OF HEALTH & BIOMEDICAL LAW 181 to establish that there were no less intrusive methods available for treating C.J.R.1 The

state should consider other avenues of psychiatric treatment before resorting to a course of treatment usually reserved for criminal sex offenders.5 2

Although not binding precedent, State v. Williams and the associated Iowa

statutes that the court refers to are particularly important to consider in light of C.J.R.'s

situation." The probate court in People ex rel. CJ.R. wanted to impose a course of treatment that would chemically castrate C.J.R.5 4 In other cases that authorize this administration of medroxyprogesterone acetate, the courts have authorized the

M.D., J.D., Sentencing Male Sex Offenders to the Use of Biological Treatments; A ConstitutionalAnaysis, 15 J. LEGAL MED. 279, 303 (1994) (concluding there are no insurmountable constitutional barriers to imposition of chemical castration). Other scholars believe that the public safety considerations outweigh what they believe to be a minimal intrusion, in the form of valid medical treatment, on a defendant. Id.

s1 See Ex rel. C.J.iR, at *20 (finding that the People failed to satisfy third Medina element). The People failed to prove by clear and convincing evidence "that there were no less intrusive treatment alternatives" to the administration of Depo-Provera. Id. See also Medina, 705 P.2d at 974 (describing third element of test laid out in case). Medina states '"i]f less intrusive methods are available to effectively redress these concerns, then clearly the court should deny the motion for nonconsensual treatment." Id. 52 Ex rel. CJ.R at *20-*22 (describing alternative methods of dealing with C.J.R.'s behavior). One psychiatrist testified to isolating C.J.R. in his own room but noted that it was not effective and that she believed it was more restrictive than the administration of Depo-Provera. Id. at *21. Because the psychiatrist did not provide any explanation of why this approach was not effective, the Court was not able to adequately assess it against other treatment options. Id. s3 See IOWA CODE § 229 (delineating procedure for civil commitment of mentally ill people); IOWA CODE § 229A (outlining standards for commitment of sexually violent predators); See generally Williams, 628 N.W.2d 447 (explaining the importance of treating civilly committed people differently than criminally incarcerated people). Williams reflects the need of the Court to distinguish between two types of mentally ill people and recognizes that mentally ill people under s. 229 and mentally ill sex offenders require different types of treatment and therefore cannot be classified the same way. Id. at 452. Following this logic, C.J.R. should not be given the type of treatment reserved for sex offenders. Id. 54 See CJ.R, 2016 Colo. App. LEXIS 1276, at *3-*4 (describing method of chemical castration). This method has not previously been utilized for someone in C.J.R.'s situation and has usually been reserved for sex offenders. Id. at *4. 182 JOURNAL OF HEALTH & BIOMEDICAL LAW VOL. XIII ISSUE 1 treatment in response to a patient committing a sexually violent offense." As stated above, C.J.R. was not imprisoned for the commission of a crime and therefore he should not be treated in a similar manner to a criminal.56 Under the United States

Constitution, equal protection is guaranteed to similarly situated citizens and it can be argued that C.J.R. is not in a similar situation to a criminal sex offender because of his mental illness and the process through which he was committed to Fort Logan.s

Therefore, the court should not be able to impose chemical castration on C.J.R. or other patients like him.58

In People ex rel. C.J.R, the court faced the issue of allowing doctors to forcibly administer Depo-Provera to a male patient to put an end to his sexually inappropriate

ss See Collins, 110 Cal. App. 4h Supp. at 344 (finding defendant was a sexually violent predator and committing him to state facility); Thorell, 2000 Wash. App. at *46 (affirming commitment of defendant as sexually violent predator); Hope, 2015 Ky. App. Unpub. at *2 (detailing crimes for which defendant was indicted for including sodomy and sexual conduct with minor); See also Grubin, supra note 28 (analyzing doctors' responsibility to ensure the safety of the public while also protecting the patient). The social and ethical implications of chemical castration make it imperative for doctors to ensure that they truly have no alternative. Id. 56 See Bruno v. State, 837 So.2d, 521, 522 (Fla. Dist. Ct. App. 2003) (ordering defendant convicted of five counts of lewd and lascivious assault to undergo castration). In this situation, a criminal defendant committed various crimes and was sentenced to thereafter, unlike the defendant in the case-in-chief. Id. s7 See U.S. CONsT. amend. XIV, § 1 (elucidating the right of similarly situated citizens to be treated equally); Ex rel. C.J.R at *1-4 (describing C.J.R.'s mental health history).). C.J.R. was clearly committed for mental health purposes and was not incarcerated due to criminal behavior and should therefore not be punished as though he were a criminal. Ex rel. C.J.R at *1-*4. The Colorado Supreme Court has recognized that antipsychotic medications could not be administrated to an incompetent, nonconsenting mental patient unless a court order authorized the treatment or an emergency existed. People t. Medina, 705 P.2d 961, 971 (Colo. 1985). In Medina, the court emphasized that a patient's commitment to a mental institution was a serious invasion of a person's privacy and that a person has rights to make choices about his or her body. Id. at 967-68. A court order could authorize treatment, however, if the treatment was necessary to prevent the patient from causing serious harm to himself or others in the institution. Id. at 973. The Court explained that demonstrating occasional violence is not enough and that the patient must have experienced a history of violence so that the likelihood of harm occurring was significantly high. Id. at 974. Id. 58 See Ex rel. C.J.R *23-24 (arguing that only alternative to chemical castration was criminal prosecution for sexual assault). With a lack of authority to support this argument, the court cannot validate it and is not required to speculate on the matter. Id. at *24. 2017 JOURNAL OF HEALTH & BIOMEDICAL LAW 183 behavior. The court decided to protect the patient's constitutional rights by ultimately holding that the probate court was not able to authorize forcible administration of

Depo-Provera. Although the outcome may not have been the most beneficial for the individuals in the ward at Colorado Mental Health Institute, the court's adhesion to the

Constitution was proper.

Suffolk University Law School

Journal of Health & Biomedical Law Volume XIII 2018 Number 2

Suffolk University Law School

Journal of Health & Biomedical Law Volume XIII 2018 Number 2

The 2017-2018 Editorial Board

Editor-in-Chief Jasmine Villanueva-Simms

Managing Editor Executive Editor Katherine Collins Dienana Dobrada

Lead Article Editor Chief Content Editor Jordan Meehan Skailer Qvistgaard

Chief Symposium Editor Colin Desko

Chief Note Editor Chief Comment Editor Kevin Robinson Catherine Dowie

Note Editors Continuity Editor Comment Editors Robert Geddes Nicholas Bosworth Caitlin Doherty Kaitlin Riessen Catherine Falvey

Staff Kaitlyn Bastarache Bethany Marshall Aakash Patel Augustus Chow Kirsten Mehnert Paola Rosetti Lauren Corolla Matthew Morgan Priscilla Santos Giuliana D'Esopo Jack Mourad Theodore Thomas Dorothy Franks Jamie Nathan Courtney Walker Andrew Hadeka Sara Wilson

FacultyAdvisor Renee M. Landers Professor of Law Suffolk University Law School

It is the purpose of the Journal of Health & Biomedical Law to publish views of merit on subjects of interest to the legal and medical profession. Publication does not indicate adoption or approval by the Journal or its editors of the views expressed.

Suffolk University Law School Journal of Health & Biomedical Law Volume XIII 2018 Number 2

The Journal of Health & Biomedical Law (JHBL) is published by Suffolk University Law School (SULS). All decisions concerning the content of JHBL are made by the Editorial Board. Statements of fact and opinion are the sole responsibility of the authors and are not necessarily endorsed by the editors or SULS. The Editors invite the submission of articles on relevant topics in the areas of health and biomedical law. For details, please see the submission guidelines at https://www.suffolk.edu/law/ student-life/22750.php. Editorial communications, including original manuscripts, should be addressed to the Editor-in-Chief, Journal of Health & Biomedical Law, 120 Tremont St., Suite 435, Boston, MA 02108 or via e-mail at [email protected].

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@ 2017 by the Journal of Health & Biomedical Law. All rights reserved. For permission to photocopy articles or other materials appearing in the Journal of Health & Biomedical Law, contact the Editor-in-Chief at [email protected].

Suffolk University Law School Journal of Health & Biomedical Law Volume XIII 2018 Number 2

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