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Dr. Bob is Robert Hsiung, MD,
bob@dr-bob.orgShown: posts 1 to 9 of 9. This is the beginning of the thread.
Posted by wendy b. on March 4, 2003, at 10:13:55
[Bob, I wasn't sure which board to post this on, hope it's ok here, it's about both medical AND social issues...]
The following is taken from today's NY Times; the Supreme Court is trying to decide whether it can adjudicate on the matter of whether the courts can require someone with psychosis to take an anti-psychotic so that he is mentally fit to stand trial. (The guy has 'delusions' that the FBI is following him, well, shit, these days, how would we be able to tell whether or not this is a delusion?) The assumption is, of course, that a positive patient outcome would be the only possible result (see below where Justice Stephen Breyer says to the defendant's lawyer: 'these medications help so many people,' as though that justified the forced administration of meds to someone who didn't want them).The other thing I find absolutely fascinating is the response of the two main mental health groups, as seen in the diametrically opposed briefs submitted to the Court by the American Psychological Association and the American Psychiatric Association. The shrinks (psychiatrists) filed on behalf of the government (!), saying that taking meds is the only route to "competency" on the part of the defendant. The psychologists filed on behalf of the defendant, saying that side effects of meds might give the defendant a certain look or manner which could prejudice a jury against him, thereby creating an unfair trial situation.
I guess I stand on the side of civil liberties and the right to bodily integrity; I couldn't imagine being forced to take any medication for any reason, even if I weren't psychologically "competent" (what's THAT, anyway?). Just like I wouldn't want my tubes tied without my consent (which has been performed routinely on low-income women). But I also never understood why suicide is a crime, nor have I ever understood any of the legal issues surrounding competency. Like, isn't a mass-murderer like Ted Bundy, by definition, someone who's mentally ill, and therefore necessarily unfit to stand trial?
Also, don't miss the part below where the 8th Circuit Court of Appeals recently decided that a death-row inmate could indeed be forced to take medications that would render him fit to be executed. Bizarre...
It would be interesting to see what others on PSB think about this. It's complex and very compelling... Justice Scalia's quote at the end of the article wraps it up in a strange way, doesn't it?
Best to everyone,
Wendy
______________
March 4, 2003Forcing Mentally Ill on Trial to Take Drugs Is Pondered
By LINDA GREENHOUSEWASHINGTON, March 3 — An inconclusive Supreme Court argument today on whether mentally ill criminal defendants may be medicated against their will to make them competent for trial reflected the essential difficulty and delicacy of the mix of law and psychiatry that the case presented.
"It doesn't fit comfortably in any setting with which we're familiar," Justice Sandra Day O'Connor observed as she asked a government lawyer how to balance the competing interests in such a case.
The defendant, Dr. Charles T. Sell, is a St. Louis dentist who was indicted in 1997 by a federal grand jury on Medicaid and insurance fraud charges. His case has a number of complexities, including a subsequent indictment for conspiring to murder a federal witness and an F.B.I. agent, but the Supreme Court framed the question more narrowly when it accepted his appeal four months ago: whether it violates the Constitution to forcibly administer antipsychotic medication in order for the government to bring someone to trial for nonviolent offenses.
Dr. Sell and the government shared a common starting point: that as an aspect of the individual liberty protected by the Constitution's due process guarantee, people do have a substantial interest in avoiding unwanted mind-altering medication. Michael R. Dreeben, a deputy solicitor general arguing for the government, described the individual liberty interest as substantial enough to justify placing an extra burden on the government to justify the need for medication.
But from there, the two arguments diverged. Mr. Dreeben said the government had met that heightened burden, despite the nonviolent nature of the felony charges the court was considering. The government has a "compelling interest" in bringing criminal defendants to trial and in "maintaining social order and peace" through resolving serious criminal charges, he said.
Mr. Dreeben said that medication had the proven ability to restore mentally ill defendants "to a point of rationality where they can decide what they want to do with their life." A defendant might rationally choose to go to trial rather than face being "warehoused" in a mental health institution, he said.
Dr. Sell's court-appointed lawyer, Barry A. Short, argued that the balance tilted clearly in favor of his client, whom he described as dangerous neither to himself nor others and whose nearly five years of pretrial confinement was already longer than the sentence the federal guidelines would impose had he been tried and convicted.
Dr. Sell has a fundamental right to refuse medication, he said, adding that "under these circumstances, I do not see any compelling interest whatsoever in prosecuting this defendant." He said that although Dr. Sell was incompetent as a legal matter, he was "medically competent" to understand his situation and make his own decisions.
The United States Court of Appeals for the Eighth Circuit, in St. Louis, upheld a federal district court's decision that the government's request for medication was justified. But although the Supreme Court had accepted Dr. Sell's appeal, Sell v. United States, No. 02-5664, a number of justices today expressed doubt about whether the court should actually decide the case.
Since the lower courts addressed the question of whether someone may be medicated in order to stand trial, their decisions were, by definition, pretrial orders. Under the ordinary rules of appellate procedure, pretrial orders lack finality and are not appealable unless they come within a few recognized exceptions.
So shouldn't Dr. Sell be required to proceed to trial and to challenge any unwanted medication after the fact or in a civil lawsuit, Justice Antonin Scalia wanted to know. "I'm concerned that a new exception could disrupt criminal trials substantially," Justice Scalia said, asking what would happen if a medicated defendant decided in the middle of a trial that he wanted the medication to stop. "I see all kinds of problems with immediate appeals," he said.
Chief Justice William H. Rehnquist and Justice O'Connor also appeared doubtful of the court's jurisdiction to proceed with the case.
The last-minute emergence of the jurisdictional issue was surprising, given that neither side had identified it as a problem. The justices had issued an order last Friday afternoon instructing both lawyers to be prepared to discuss whether the court has jurisdiction, and directing them to file briefs on the issue this Friday.
If the court finds itself unable to decide this case, it may soon have an even more highly charged case to consider. The Eighth Circuit decided another involuntary medication case last month, ruling 6 to 5 that a mentally ill death row inmate can be forcibly medicated in order to be made competent to be executed.
The issue of forcible medication is highly controversial and has split the mental health professions. In the case today, the American Psychological Association filed a brief on behalf of Dr. Sell. It warned that the same drugs that restore a defendant to competency "can prejudice the defendant in the eyes of the jury" by creating the appearance of boredom or restlessness.
The American Psychiatric Association filed a brief for the government, arguing that medications that restore a defendant to competency are often the most medically appropriate way of treating the mental illness. "The court should not ignore the real costs of leaving a defendant untreated," the psychiatrists said.
In addition to due process and fair trial rights, Dr. Sell's supporters also raise objections under the First Amendment to involuntary mind-altering medication. A brief submitted by the National Association of Criminal Defense Lawyers tells the court that if Dr. Sell testified under the influence of medication, "his words would not be his own" but would be the government's.
Dr. Sell's diagnosis is "delusional disorder, persecutory type." Essentially, he believes that the F.B.I. is conspiring against him. He is being held in the federal prison system's medical center in Springfield, Mo.
The justice most sympathetic to his position today was Anthony M. Kennedy. "I don't understand the government's basic authority to do this at all," Justice Kennedy said to Mr. Dreeben, the government's lawyer.
Justice Stephen G. Breyer, on the other hand, appeared skeptical of Dr. Sell's argument. "There are a lot of seriously ill people whom these drugs help a lot," he told Mr. Short, Dr. Sell's lawyer.
The court seemed to find the case almost exasperatingly difficult. "What is your solution to this dilemma?" Justice Scalia asked Mr. Short. "We can't try him because his mind is not working properly, but you say he's entitled to refuse the drugs that would make his mind work properly. It's just a crazy situation. What can we do about it?"
Posted by Ritch on March 4, 2003, at 10:52:42
In reply to Forcing mentally ill to take drugs - NY Times, posted by wendy b. on March 4, 2003, at 10:13:55
"Fit to be executed"? Now THAT's irony.
Posted by noa on March 4, 2003, at 22:08:17
In reply to Re: Forcing mentally ill to take drugs - NY Times » wendy b., posted by Ritch on March 4, 2003, at 10:52:42
I know. Don't get me started! The idea that you can take a person who committed a capital crime while legally insane, then medicate him or her just so that they can be considered legally sane in order to be tried and executed, is just plain barbaric to me, not to mention totally illogical. I mean sure, if someone is truly dangerous to society, and is likely to remain so for a long time, take them off the street, so to speak, hospitalize them in a secure facility. But how can you hold someone responsible, to the tune of the death penalty, for an act committed when they were not able to tell right from wrong, and show the cruelty to medicate them so that they can be lucid enough to experience a trial sanely and held responsible as though they understood right from wrong at the time of the crime when they didn't. It seems cruel to bring someone to consciousness just to have them be aware of being doomed to death!
BTW, there was a column in the New Yorker not long ago by Scott Turow, lawyer and author, questioning the death penalty on the basis of all of the errors that have been exposed--that led to the moratorium on death sentences in Illinois.
Posted by Ritch on March 4, 2003, at 23:41:24
In reply to Re: Forcing mentally ill to take drugs - NY Times, posted by noa on March 4, 2003, at 22:08:17
> I know. Don't get me started! The idea that you can take a person who committed a capital crime while legally insane, then medicate him or her just so that they can be considered legally sane in order to be tried and executed, is just plain barbaric to me, not to mention totally illogical. I mean sure, if someone is truly dangerous to society, and is likely to remain so for a long time, take them off the street, so to speak, hospitalize them in a secure facility. But how can you hold someone responsible, to the tune of the death penalty, for an act committed when they were not able to tell right from wrong, and show the cruelty to medicate them so that they can be lucid enough to experience a trial sanely and held responsible as though they understood right from wrong at the time of the crime when they didn't. It seems cruel to bring someone to consciousness just to have them be aware of being doomed to death!
>
> BTW, there was a column in the New Yorker not long ago by Scott Turow, lawyer and author, questioning the death penalty on the basis of all of the errors that have been exposed--that led to the moratorium on death sentences in Illinois.
>
>It is a good thing that the then gov. of Illinois had a *conscience*. Our society is once again being confronted with the conflict between RESULTS and METHODS. And the new polarization has started yet again (kind of like historic mood cycling). The results thing was illustrated quite well for me when reading "The Gulag Archipelago" by Alexandr Solzhenitsyn a long time ago. I remember a passage in there where he is in a Stalinist labor camp and they(the prisoners) go and see a movie and the "moral" of the movie was: "THE RESULT IS WHAT COUNTS AND THE RESULT IS NOT IN YOUR FAVOR".
Posted by syringachalet on March 5, 2003, at 0:01:57
In reply to Re: Forcing mentally ill to take drugs - NY Times, posted by noa on March 4, 2003, at 22:08:17
Wendy,
Where I work we have had to get a court order to medicate mentally ill patients without patient consent. By the definition of the law, "this patient (had demonstrated that he) was a danger to himself and/or to others".
Under this description, we have never had a magistrate refuse us a medication order for 72 hours. During this time frame a serious medical workup on this patient was completed to try to find a medical reason for this at-risk behavior. If a medical problem existed, treatment offered was provided in the least restrictive environment as safe for the patient and those in his environment.
If a patient refused this medical treatment, the initial court order also allowed us to medicate him until such time he could no longer be a danger to himself and to others. This was not at his option.
Any physically non-abusive sterotypical behaviors were not treated with meds. Only if a behavior esclated to self-inflicting or physically aggressive behaviors was the patient first verbally cued and then progressively
physically---> chemically restrained for his own safety and those around him.After those 72 hours, was the patient regularly medicated at the lowest dose of medication that helped him control his own behaviors to prevent the SIB/physical abuse of those in his envorniment. Any non-consentual PRNs required specific documentation as to the patient actions followed up with the outcome including an MD call if needed results did not occur after the first dose.
Does it seem cruel and unkind? Depends on if you can ask yourself one question....
If you were so out of control that you started injuring yourself or someone else, wouldnt you want someone to care enough to help you regain some minimum level of self-control in the least restrictive environment and by whatever means it took for your own self-esteem and dignity?
I would be interested in other peoples perspectives on this topic...
syringachalet
Posted by wendy b. on March 5, 2003, at 14:12:46
In reply to Re: Forcing mentally ill to take drugs - NY Times, posted by syringachalet on March 5, 2003, at 0:01:57
> Does it seem cruel and unkind?
No, it does not. Would it be painful for me to perform? Yes, it would. Would it be painful to even watch it, or even read about, as I have here in your account? Yes. I was not made of such sturdy material as you, and your commitment to your work is commendable.
>Depends on if you can ask yourself one question....
> If you were so out of control that you started injuring yourself or someone else, wouldnt you want someone to care enough to help you regain some minimum level of self-control in the least restrictive environment and by whatever means it took for your own self-esteem and dignity?
In this case, yes, I would want to protect others and myself from my injurious behavior. The patient in the case I bring up here, however, is not displaying any injurious behavior (at least the way it's reported). The defendant is composed enough to sit in a court room without being disruptive. So if the mentally ill person is not harming anyone in his environment, should he be medicated anyway? I don't think so. I think here, as in every aspect of life, the specifics of the situation have to be taken into account...Best wishes,
Wendy
Posted by syringachalet on March 5, 2003, at 16:08:23
In reply to Re: Forcing mentally ill to take drugs - NY Times » syringachalet, posted by wendy b. on March 5, 2003, at 14:12:46
Thanks, Wendy, for the clarification of your position.
I couldnt agree with you more that a patient
should NOT be medicated against his will simply at the convenience to the caregivers or family.I have had to counsel patients more than once regarding other medications such as birth control methods. For patients who choose to be sexually active during their institutionalization they
are told that if they have a pregnancy result, that they would not be able to keep
that child and it would be made a
ward of the state and put up for adoption.
The state has decided that it will not support any inmate children conceived during incarceration. Most inmates then agree to a pill or shot and when they are paroled they can decided for themselves if they continue or not.
They DO have a choice: the meds or no sex.Getting back to the psych meds...
anytime a patient should be medicated,
regardless if it is with or without consent,
that medication and the behavior it was intitally prescribed for needs to be evaluated for effectiveness and serious decisions made
about the benefits-risks of continued
dosage and duration.there are choices in these situations.
Most people who come to us are in crisis
mode and have been for a long time.
Most also temporarily lack the good
judgement for major decisions.
By the state temp(<72 hours) taking that
control, that person dooesnt have to try
to make big decisions and can give himself
time to calm down and start refocusing on what he needs to do to get his life and good decision making back in motion for his basic ADLs.All of my clients have a AIMs(autonomic involuntary muscle screening) for potential TD(tardive dyskenisa) prior to initial regular dosage and every 30 days X 3 months.
If anyone thought they could get away with doing that type of forced medication here, the ACLU and the Human Rights Commission would be on them like ugly on a pig...talk about pitt bulls with lipstick..LOL Its all about choices.
Thanks for sharing.
syringachalet
Posted by stjames on March 6, 2003, at 12:25:03
In reply to Forcing mentally ill to take drugs - NY Times, posted by wendy b. on March 4, 2003, at 10:13:55
When the AP's were discovered in the 1950's, they emptied the psyco wards. This produced a new problem, who made sure the crazy people took their meds ? It is no surprize that there was a significant rise in homeless persons, starting in the 1950's.
Posted by syringachalet on March 7, 2003, at 5:43:56
In reply to Re: Forcing mentally ill to take drugs - NY Times, posted by stjames on March 6, 2003, at 12:25:03
The biggest pouring out of the state mental hospitals was both in the 1950s and the 1970s.
In the 1970s, the federal government started handing out grant moneys for community-based mental health centers for patients to be followed-up while they supposedly lived in small group homes or indepedently.
Today most of the severely chronically mentally ill still exist in small group home settings and are maintained on medications that are monitored and paid for by Medicaid. In my state, group home placement is $2,500/month plus any meds and treatments the MD thinks will help the residents quality of life.
I keep wondering what will we all do when we are little old crazy people when our livers are shot from all the meds we took to just keep our wits about us...
Just babbling...
syringachalet
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