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Opinion 97064

DATE: December 22, 1997

SUBJECT: Involuntary Antipsychotic Medication Hearings

REQUESTED BY: Harold W. Clarke, Director, Nebraska Department of Correctional Services

WRITTEN BY: Don Stenberg, Attorney General

Terri M. Weeks, Assistant Attorney General




You have asked for an opinion regarding the Department's

procedures concerning involuntary medication hearings involving

mentally ill inmates. Your specific questions were:




1) What is the nature of the Fourteenth Amendment due

process interest of an inmate in not being

medicated involuntarily?




2) What procedural mechanism does the Department need

to follow before entering an order to allow

involuntary medication?




a) Does the hearing officer need medical/

psychiatric training?




b) What must be established in order to enter

such an order?




c) What responsibility does the Department have

to ensure that the inmate's interests are represented?




i) Is the responsibility different if the

inmate is not able to respond or

understand that a hearing is being held?




d) Is an administrative appeal required?




All of your questions are addressed below.




Question I: What is the nature of the Fourteenth Amendment due

process interest of an inmate in not being

medicated involuntarily?




In Washington v. Harper, 494 U.S. 210 (1990), the Supreme

Court held that inmates possess "a significant liberty interest in

avoiding the unwanted administration of antipsychotic drugs under

the Due Process Clause of the Fourteenth Amendment." 494 U.S. 221-

222. The right to be free of medication must be balanced, however,

against the state's duty to treat mentally ill inmates and run a

safe prison. United States v. Watson, 893 F.2d 970, 977-78 (8th

Cir.), cert. denied, 497 U.S. 1006 (1990); Ashby v. Schneck, 61

F.3d 908 (8th Cir. 1995). Therefore, the Due Process Clause

permits the state to treat a prison inmate who has a serious mental

illness with antipsychotic drugs against his will, if the inmate is

dangerous to himself or others and the treatment is in the inmate's

medical interest. Harper, 494 U.S. at 227.




In Harper, an inmate challenged his involuntary treatment with

psychotropic drugs over a period of some three and one-half years

while incarcerated at Washington's Special Offender Center. The

Court addressed the questions of whether inmates have a liberty

interest in avoiding the administration of antipsychotic drugs

against their will and, if so, whether the state of Washington's

comprehensive procedures governing the ongoing involuntary

administration of such drugs comported with the requirements of due

process. As to the first of these issues, the Court held that an

inmate does have a constitutionally protected liberty interest in

avoiding the involuntary administration of antipsychotic drugs (in

addition to any state-created liberty interests), Id. at 221-22,

110 S. Ct. at 1036-37, but that a state may nonetheless

involuntarily treat an inmate who has a serious mental illness with

antipsychotic drugs if that inmate is a danger to himself or to

others and the treatment is in the inmate's medical interest, Id.

at 227, 110 S. Ct. at 1039-40; see also Riggins v. Nevada, 504 U.S.

127, 134-35, 112 S. Ct. 1810, 1814-15, 118 L. Ed. 2d 479 (1992).




The Court held as to the second issue that the particular

array of Washington's procedures governing the administration of

antipsychotic drugs on a continuing basis satisfied the

requirements of the Due Process Clause of the Fourteenth Amendment.

Harper, 494 U.S. at 228, 110 S.Ct. at 1040. Four procedural

protections were clearly established by Harper as the

constitutional minima for satisfying procedural due process when a

state involuntarily administers antipsychotic medication to a

prisoner. Those four procedural requirements are: a) notice; b)

the right to be present at an adversary hearing; c) the right to

present evidence and cross examine witnesses; and d) the right to

an independent decision maker. Doby v. Hickerson, 120 F.3d 111

(8th Cir. 1997).




The Court in Harper did not have before it, and it did not

address, what process might be required before state prison

authorities may administer an antipsychotic drug in an emergency

circumstance, as opposed to regularly in the course of ongoing,

long-term treatment.




Question II: What procedural mechanism does the Department need

to follow before entering an order to allow

involuntary medication?




Before the procedural aspects of Harper are applicable, the

Nebraska Department of Correctional Services (DCS) would first have

to satisfy the substantive prong of Harper, which requires that a

treating psychiatrist has determined that the inmate suffers from

a serious mental illness, that he is dangerous to himself or

others, and that medication is needed for his medical treatment.




After that determination is made the four procedural

protections set forth by the Court in Harper must be satisfied when

a state seeks to involuntarily administer antipsychotic medication

to a prisoner. Doby v. Hickerson, 120 F.3d 111 (8th Cir. 1997).




A. Notice




As set forth by the United States Supreme Court in Harper, the

notice requirement entails the following:




Notice of the hearing 24 hours in advance;




the inmate is medication free for the 24 hours preceding

the hearing;




the notice includes the tentative diagnosis, a factual

basis for the diagnosis, and why staff believe medication

is necessary.




B. Right to Attend the Hearing




The inmate has the right to attend the hearing, and to the

assistance of a lay advisor who understands the psychological

issues involved. This lay advisor cannot be involved with the

inmate's treatment. Harper v. Washington.




C. Present Evidence/Cross-Examine




Harper also holds that the inmate has the right to present

evidence on his behalf and to cross-examine the witnesses.






D. Independent Decision Maker




Harper sets forth a constitutional right to an independent

decision maker. This means that no decision maker may be involved

at the time of the hearing in the inmate's treatment or diagnosis.

Members are not disqualified from sitting on the committee,

however, if they have treated or diagnosed the inmate in the past.

Harper, 110 S. Ct. at 1040.




1. Does the hearing officer need medical/psychiatric

training?




The United States Supreme Court in Harper is less than clear

on this issue. Based on the following passages from Harper, it is

quite clear that the Court favors the practice of having someone

knowledgeable on psychiatric issues involved in the decision to

involuntarily medicate a prisoner with antipsychotic medication.




. . . The Policy under review requires the State to

establish, by a medical finding, that a mental disorder

exists which is likely to cause harm if not treated.

Moreover, the fact that the medication must first be

prescribed by a psychiatrist, and then approved by a

reviewing psychiatrist, ensures that the treatment in

question will be ordered only if it is in the prisoner's

medical interests, given the legitimate needs of his

institutional confinement. These standards, which

recognize both the prisoner's medical interests and

theState's interests, meet the demands of the Due Process

Clause.




110 S. Ct. at 1037.




Notwithstanding the risks that are involved, we

conclude that an inmate's interests are adequately

protected, and perhaps better served, by allowing the

decision to medicate to be made by medical professionals

rather than a judge. The Due Process Clause "has never

been thought to require that the neutral and detached

trier of fact be law trained or a judicial or

administrative officer." Parham, 442 U.S. at 607, 99

S.Ct. at 2506-07. Though it cannot be doubted that the

decision to medicate has societal and legal implications,

the Constitution does not prohibit the State from

permitting medical personnel to make the decision under

fair procedural mechanisms . . . .




110 S. Ct. at 1042.




"Although we acknowledge the fallibility of medical

and psychiatric diagnosis, see O'Connor v. Donaldson, 422

U.S. 563, 584 [95 S.Ct. 2486, 2498, 45 L.Ed.2d 396]

(1975) (concurring opinion), we do not accept the notion

that the shortcomings of specialists can always be

avoided by shifting the decision from a trained

specialist using the traditional tools of medical science

to an untrained judge or administrative hearing officer

after a judicial-type hearing. Even after a hearing, the

nonspecialist decisionmaker must make a medical-

psychiatric decision. Common human experience and

scholarly opinions suggest that the supposed protections

of an adversary proceeding to determine the

appropriateness of medical decisions for the commitment

and treatment of mental and emotional illness may well be

more illusory than real." (Citation omitted).




110 S. Ct. at 1042.




. . . The risks associated with antipsychotic drugs are

for the most part medical ones, best assessed by medical

professionals. A State may conclude with good reason

that a judicial hearing will not be as effective, as

continuous, or as probing as administrative review using

medical decisionmakers. We hold that due process

requires no more.




110 S. Ct. at 1042-42.




Keeping these passages in mind, it is our opinion that while

the Court favors the practice, the Constitution does not require

that the hearing officer be a medical practitioner or a

psychiatrist.




2. What must be established in order to enter such an order?




In order to involuntarily administer antipsychotic medication,

the evidence presented at the hearing must establish that:




the inmate suffers from a serious mental illness;




the inmate is dangerous to himself or others; and




that treatment with antipsychotic medication is in his

medical interest given the legitimate needs of his

institutional confinement.




Washington v. Harper, 494 U.S. 210, 227 (1990); Walton v. Norris 59

F.3d 67 (8th Cir. 1995).




3. What responsibility does the Department have to ensure

that the inmate's interests are represented?




As set forth above, in response to question 2, the inmate has

the right to attend the hearing, with the assistance of a lay

advisor who understands the psychological issues involved. This

lay advisor cannot be involved with the inmate's treatment.




a) Is the responsibility different if the inmate

is not able to respond or understand that a

hearing is being held?




No. We have found no case law that gives guidance on this

issue. If DCS complies with Harper regarding a lay advisor, this

should be legally sufficient.




4. Is an administrative appeal required?




Yes. Under the policy reviewed by the Court in Harper, the

following procedures were also approved by the Court:




minutes kept of the hearing and given to the inmate;




right to appeal and to have the appeal addressed by DCS

staff (superintendent) within 24 hours;




judicial review; and




periodic review of the involuntary medication decision.




CONCLUSION




We hope this opinion addresses all of the issues raised in

your request. If you have any further questions, please feel free

to contact our office.




Sincerely yours,




DON STENBERG

Attorney General


Terri M. Weeks

Assistant Attorney General