Not gonna take it. Can’t make me.

State for the Protection and Best Interest of EG (Published): Statements in a civil application to compel an incompetent criminal defendant to take his meds aren’t proof warranting forced medication.

EG was declared incompetent to stand trial on a cocaine possession charge. He was ordered to a mental hospital. In the hospital, he’d do crazy things like snort artificial sugar.

His doctor diagnosed him with schizophrenia, and prescribed several drugs to treat him (and restore his competency to stand trial). EG may be crazy, but he ain’t stupid: he refused to take the meds. (Who didn’t see that one coming?)

So the doctor filed an application under Tex. Health & Safety Code Ann. § 574.106 to compel EG to take the meds. This statute is relatively new.  For an overview, here is the bill analysis from the 79th Texas Legislature in 2005.

The trial court granted the application. The Tyler court of appeals reversed and rendered.

Statements in the doctor’s application were not backed up by testimony. Under the statute, there must be clear and convincing evidence that: 1. the patient doesn’t have the “capacity” to make his own decision about the meds, and 2. the meds are in the patient’s best interest. The factors going into “capacity” are the patient’s ability to: a.) understand the nature and consequence of a proposed treatment, including the benefits, risks, and alternatives to the proposed treatment, and b.) make a decision whether to undergo the proposed treatment. These factors are viewed in light of: i.) the patient’s expressed preferences regarding treatment with psychoactive medication, ii.) the patient’s religious beliefs, iii.) the risks and benefits, from the perspective of the patient, of taking psychoactive medication, iv.) the consequences to the patient if the psychoactive medication is not administered, v.) the prognosis for the patient if the patient is treated with psychoactive medication, and vi.) alternatives to treatment with psychoactive medication.

That’s a lot of i’s to dot and t’s to cross. Perhaps the doctor could have done that here. The problem was that the doctor made the right assertions in the application, but didn’t touch all the bases in his testimony. In particular, the doctor explained neither EG’s illness, nor how (untreated) the illness robs his capacity to make decisions about medication, nor how treatment would be in EG’s best interest. Since the court found there was “no evidence” on these elements of the State’s burden of proof, there was no need to get into the finer points of the legal sufficiency standard of review, and certainly no need to reach the factual sufficiency question.

Forcing incompetent criminal defendants to restore their competency with meds is a very knotty and very hot issue. Take, for example, the Elizabeth Smart case. The Utah Supreme Court is currently (March, 2008) considering the emergency motion of one of the defendants, Wanda Barzee. Like EG, Barzee, was declared incompetent to stand trial, and also like EG, Barzee refuses to take psychiatric medications. The United States Supreme Court issued a decision in this area in 2003, Sell v. United States, 539 U.S. 166, 177 (2003)(holding that a person has a “’significant’ constitutionally protected liberty interest in avoiding an unwanted administration of anti-psychotic drugs.”)

And then there’s the related issue of: “How much wiggle room is there between criminal ‘competency’ to stand trial and civil ‘capacity’ to refuse medication?”

With Rusk State Hospital in the Tyler court’s jurisdiction, the Tyler court is, and will be, on the front lines of this issue.

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