August 24, 2011

Can The Court Force Treatment on Jared Loughner?


my attorney has advised me to punch you

Jared Loughner shot Representative Gabrielle Giffords and 18 other people, which immediately suggested that he was a right wing nutjob, but, apparently, he was actually psychotic, which is ok because Webster's says those are synonyms.

He was found not competent to stand trial.  This means his trial is postponed until his mental illness resolves enough for him to: understand the charges against him; participate meaningfully in his own defense; control his behavior in court; etc.  See that last "etc?"  That's the part that allows courts to do anything they want to you.

Loughner, however is refusing to take antipsychotic medication to get better.  A more accurate restating of that sentence would be, "it is extremely likely that Loughner's attorney is refusing to allow him to be medicated, with the hope that trial is postponed forever, or at least until the attorney comes up with a really awesome defense, or people forget who Loughner is."

Let's Michael Foucault this whole discussion and recall that psychiatry is a medical specialty that is also used to set social policy.

Practically, this means that if the court wants to medicate Loughner against his will, they can.  There is a legal process to follow, but it is simple and straightforward and completely not in any kind of dispute.

There should be no issue.


So I was surprised to read that the American Psychiatric Association and the American Academy of Psychiatry and the Law, through Paul Appelbaum, filed an amicus curiae brief in support of forced medication.  Why?  Isn't this a non-issue? 

In fact, there are two reasons you can forcibly medicate (only) prisoners.  The first is Sell v. US: you can force antipsychotics for the purpose of restoring the defendant to competency to stand trial.

The second reason is Washington V. Harper, which allows forced medication of psychotic  prisoners in the situation where they were dangerous to themselves or others.

So, again, I was confused.  What's the debate?

The APA's brief had two purposes:

1. "When the courts address issues concerning psychiatric disorders, we want them to have accurate data on the nature and consequences of those illnesses and on appropriate treatments."  The reason antipsychotics have traditionally been disallowed is because, as in Sell, there are significant irreversible side effects (tardive dyskinesia) that may outweigh the benefits.  So the APA wants to update the court on the real risks, especially of the atypicals.

2.  Sit down:

The second key issue the brief addressed was the importance of permitting authorities who have custody of a defendant to make decisions of forcible medication without having to go through a time-consuming judicial hearing on the matter.

The brief pretends that the issue is unscrupulous lawyers keeping their poor psychotic clients psychotic forever, to their great distress, just to avoid trial.  Appelbaum would like Harper to be the standard; Sell is too bureaucratic.

In addition, we believe psychiatrists working in correctional facilities need the flexibility to deal with dangerous persons without the delay involved in lengthy court proceedings.
The APA assumes that treatment decisions should fall to psychiatrists, but it seems not to appreciate that these are psychiatrists in prisons who work for the government.  There is massive, gargantuan pressure on psychiatrists to medicate and commit and diagnose inmates for all kinds of legal reasons.  Harper may seem like the more psychiatrist-friendly standard, but it isn't.  You want the standard to be Sell, because you want a way to avoid the pressure from the government.

The Loughner case is misleading because he is mentally ill and dangerous, but the APA wants to massage Harper to focus on the dangerousness.   Here's a more typical example: the defendant is a violent rapist who has significant personality disorder but no clear psychosis ("no Axis I pathology.")  He punched his lawyer.  Now what?  You commit him to the psychiatric ward because he's incompetent to stand trial and forcibly medicate him because he's dangerous. But he's not psychiatric!  "Yes he is, it says it right there on the commitment papers: Psychosis NOS."  So you ask how he got that diagnosis, and of course the answer is: we needed it to be able to forcibly medicate him.

I'm not going soft on rapists-- go ahead and sentence him to life.  But don't send him to psychiatry because you don't know what else to do with him.

Doctors are given considerable deference to use their judgment; they are given greater latitude to violate a person's rights.  The government will use the back door of the doctor's privilege to get what it wants.  It is inevitable.

The issue is not whether psychiatrists should medicate people who are obviously psychotic and dangerous-- you don't need an APA amicus curiae brief for that.  The issue is whether you want to force all prison psychiatrists to be responsible for the "treatment" of every violent person out there, simply because they are "dangerous." 

The APA has always wanted the answer to be yes.  And here, again, they do not understand the consequences of this.  I can thus say, according to the strictest definition of the term, that the APA is completely insane.


1. In the Harper case, the American Psychological Association filed an amicus curiae brief in support of Harper, i.e. that forcible medication without a hearing violated the due process and equal protection clauses.  You are welcome to explore the disparity between the APAs.

2. Harper does not apply to civilians. You can force hospitalization on a guy for being dangerous and psychiatric, but you cannot force treatment on him without a court order.  You can lock him down, but you cannot touch him.

If a psychotic diabetic patient whose sugar is life threateningly high is refusing insulin because aliens tell him to, upon psychiatric review you can force insulin on him, but you still can't force antipsychotics on him because the insulin is necessary to his survival and the antipsychotics are not.

We know that psychosis takes a few days to improve, even if the right dose/drug is hit on immediately.  The fact that it takes days to work means you can't argue they are life saving, so you can't get past the need for a court order. 

I will point out that even though what I've written is true, psychiatrists still routinely force medication on people, in jails and in hospitals.  They're doing it for noble reasons, and I don't fault them, but it's important to know where the line is before you cross it.  And, as importantly, it is far preferable that a doctor violate the law in order to do what's best for a patient, then it is for the government to sneak past people's civil rights by hiding inside their doctors' white coats.


Competency to be executed

Then I change my mind: Competency to be executed II