MENTAL HEALTH LAW & POLICY JOURNAL VOLUME 2 SUMMER 2013 ISSUE 2 SPECIAL ISSUE IN COLLABORATION WITH THE SAKS INSTITUTE FOR MENTAL HEALTH LAW, POLICY, AND ETHICS: PSYCHOTROPIC MEDICATION AND THE LAW FORCIBLE MEDICATION OF CIVIL COMMITTEES: THE MOST APPROPRIATE STANDARD Elyn Saks, J.D., Ph.D., M.Litt. S UCCESS OF INFLUENCE AND COERCION: A FUNCTION OF HOW PSYCHOTROPIC MEDICATION IMPACTS THE GOALS OF ADULT PSYCHIATRIC PATIENTS Jennifer Talevich, Ph.D. THE ETHICS OF COGNITIVE ENHANCEMENT: ADHD MEDICATIONS AND BEYOND Doug Lawson, J.D. TREATMENT FOR PUNISHMENT: THE PROBLEM WITH FORCED MEDICATION FOR EXECUTION UNDER CALIFORNIA LAW Michael Parente, J.D., Ph.D., M.A. MENTAL HEALTH LAW & POLICY JOURNAL VOLUME 2 SUMMER 2013 ISSUE 2 EDITORIAL BOARD JESSICA SULLIVAN Editor-in-Chief JILL MICAI SARAH ATKINSON Symposium Editor NATALIE BURSI Business Editor Managing Editor JESSEE BUNDY TAMARA DAVIS Articles Editor SHALONDRA PICKFORD, M.B.A. Articles Editor Executive Editor CHRIS MARTIN WILLIAM MCCALLUM Articles Editor ROBERT M. SWANN Articles Editor Research Editor SENIOR ASSOCIATE MEMBERS JAMES DALE DANIEL LENAGAR JENNIFER MAYHAM RANDAL MARTIN JONATHAN RING ASSOCIATE MEMBERS ANTHONY ADEWUMI ABIGAIL HALL KEZIA MILLS CASSANDRA BOLDING MACKENZIE HOGAN CAROLINE SAPP REBECCA CLOSNER KRISTEN HOWELL SETH SEGRAVES JOHN COX LESLYE LANE KALEIGH THACKER AMANDA GARLAND WHITNEY MANNING KAYLA TOWE ASHLEY GENO MEGAN WARDEN FACULTY ADVISOR LARS GUSTAFSSON, J.D., LL.M. INTERIM DEAN WILLIAM P. 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Cite as: 2 Mental Health L. & Pol’y J. __ (2013) MENTAL HEALTH LAW & POLICY JOURNAL VOLUME 2 SUMMER 2013 ISSUE 2 Copyright © 2013 Mental Health Law & Policy Journal SPECIAL ISSUE IN COLLABORATION WITH THE SAKS INSTITUTE FOR MENTAL HEALTH LAW, POLICY, AND ETHICS: PSYCHOTROPIC MEDICATION AND THE LAW CONTENTS FORCIBLE MEDICATION OF CIVIL COMMITTEES: THE MOST APPROPRIATE STANDARD Elyn Saks, J.D., Ph.D., M.Litt. 233 SUCCESS OF INFLUENCE AND COERCION: A FUNCTION OF HOW PSYCHOTROPIC MEDICATION IMPACTS THE GOALS OF ADULT PSYCHIATRIC PATIENTS Jennifer Talevich, Ph.D. 244 THE E THICS OF COGNITIVE ENHANCEMENT: ADHD MEDICATIONS AND BEYOND Doug Lawson, J.D. 272 TREATMENT FOR PUNISHMENT: THE PROBLEM WITH FORCED MEDICATION FOR EXECUTION UNDER CALIFORNIA LAW Michael Parente, J.D., Ph.D., M.A. 304 Forcible Medication of Civil Committees: The Most Appropriate Standard * BY ELYN R. SAKS This article examines at what point doctors may forcibly medicate someone for the sake of his or her medical interests. The Supreme Court remanded a medication case in light of another case that looks at mechanically restraining someone with mental retardation.1 It remanded another case because the state law was arguably more protective of patients than the federal constitution.2 The Court has also looked at this in the case of criminal defendants and convicts.3 Its criminal cases, in the context of competency to stand trial, may also have a bearing on what standard to adopt.4 I suggest that the best standard for civil committees is the same one used for anyone facing a medical decision: that they may be forcibly treated only if they lack capacity or are in an emergency situation.5 This article asserts that this is consistent with the Court’s positions and is the best standard normatively. * Orrin B. Evans Professor of Law, Psychology, and Psychiatry and the Behavioral Sciences, University of Southern California Gould School of Law. I would like to thank reference librarian, Cindy Guyer, for her excellent research assistance for this article. 1. See Rennie v. Klein, 458 U.S. 1119 (1982). 2. See Mills v. Rogers, 457 U.S. 291 (1982). 3. See Washington v. Harper, 494 U.S. 210 (1990). 4. See Riggins v. Nevada, 504 U.S. 127 (1992); see also Sell v. United States, 539 U.S. 166 (2003). 5. This view has been in the literature for some time. See, e.g., Stephan Beyer, Comment, Madness and Medicine: The Forcible Administration of Psychotropic Drugs, 1980 WIS. L. REV. 497 (1908); Jessica Litman, Note, A Common Law Remedy for Forcible Medication of the Institutionalized Mentally Ill, 82 COLUM. L. REV. 1720 (1982). A later, extensive treatment of this topic is BRUCE W. WINICK, THE RIGHT TO REFUSE MENTAL HEALTH TREATMENT (1997) (evaluating the standard in light of the Supreme Court remands and cases, as well as elaborating on why it is a good standard, does add to this literature). 233 234 Mental Health Law & Policy Journal Vol. 2 This article first reviews the primary, relevant Supreme Court cases and then look at subsequent cases and statutes. The article then argues—on whatever doctrinal basis—that the competency/emergency standard is the best. In Youngberg v. Romeo, the Court held that a person with mental retardation can be mechanically restrained so long as the restraint decision does not depart significantly from the judgment a professional would use.6 Importantly, in Rennie v. Klein, the Supreme Court remanded the right to refuse medication in light of Youngberg.7 Additionally, the Court remanded a case that required incompetence or an emergency and reasoned that the state standard may be higher than what the federal constitution requires.8 Washington v. Harper considered a prisoner’s right to refuse medication.9 There, the Court held that states can involuntarily medicate a prisoner if he is mentally ill; dangerous to self or others or gravely disabled; and the medication is in his medical interests.10 The Court uses a “rational relation” test and adverts to security issues that are especially prominent in jails and prisons.11 The Court does not require that the prisoner lack capacity to make his own decision.12 That is, his competent decision may be overridden if the conditions above are met. On its face, Youngberg, if taken literally, is broader than Washington. Based on Youngberg, it could conceivably be a practice among hospital doctors to medicate someone to enforce discipline; to serve goals of convenience; or to incentivize patients to accept medication in the future.13 In a narrow sense, these practices would not be in the patient’s medical interests. In the same way, doctors might even forcibly medicate patients who are not currently dangerous to themselves or others or gravely disabled, as Washington requires. In fact, subsequent case law does not give physicians carte blanche on decisions to medicate. For instance, the Rennie v. Klein court, whose case had been remanded by the Supreme Court in 6. Youngberg v. Romeo, 457 U.S. 307 (1982). 7. Rennie v. Klein, 458 U.S. 1119 (1982). 8. Id. 9. Washington v. Harper, 494 U.S. 210 (1990). 10. Id. 11. Id. 12. Id. 13. Youngberg v. Romeo, 457 U.S. 307 (1982). 2013 Forcible Medication of Civil Committees 235 light of Youngberg, requires the professional judgment that a patient is dangerous before imposing medication (see Rennie v. Klein, infra note 6).14 Other cases specify factors that must be part of the professional judgment.15 For example, the risks and side effects should be considered and the medication cannot be for convenience or economic reasons.