AGO Opinion 97064
Involuntary Antipsychotic Medication Hearings
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
2) What procedural mechanism does the Department need
to follow before entering an order to allow
a) Does the hearing officer need medical/
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
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,
Question II: What procedural mechanism does the Department need
to follow before entering an order to allow
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).
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 notice includes the tentative diagnosis, a factual
basis for the diagnosis, and why staff believe medication
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
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
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
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
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.
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.
Terri M. Weeks
Assistant Attorney General