Vaccination News Home Page                                            subscribe Vaccination NewsLetter

http://www.nytimes.com/2003/03/04/politics/04SCOT.html?ei=5070&en=f49364156a9ca176&ex=1050292800&pagewanted=print&position=top

Forcing Mentally Ill on Trial to Take Drugs Is Pondered

By LINDA GREENHOUSE

ASHINGTON, 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?"

Copyright 2003 The New York Times Company | Privacy Policy

Vaccination News Home Page

ALL INFORMATION, DATA, AND MATERIAL CONTAINED, PRESENTED, OR PROVIDED HERE IS FOR GENERAL INFORMATION PURPOSES ONLY AND IS NOT TO BE CONSTRUED AS REFLECTING THE KNOWLEDGE OR OPINIONS OF THE PUBLISHER, AND IS NOT TO BE CONSTRUED OR INTENDED AS PROVIDING MEDICAL OR LEGAL ADVICE.  THE DECISION WHETHER OR NOT TO VACCINATE IS AN IMPORTANT AND COMPLEX ISSUE AND SHOULD BE MADE BY YOU, AND YOU ALONE, IN CONSULTATION WITH YOUR HEALTH CARE PROVIDER.