MEMORANDUM

To: Johnathan Schiffman, Esq.From: Lauren Park, ParalegalRe: Commonwealth v. Nelson

Forcible administration of anti-psychotic medicationDate: October 19, 2015

Issue

Does the Constitution permit the State to forcibly administer antipsychotic drugs to a mentally ill

defendant, when administering the drugs only has a 20 percent chance of rendering him competent to

stand trial and when defendant has previously suffered severe and debilitating side effects from these

drugs?

Brief Answer

No. The State may not forcibly administer antipsychotic drugs to a mentally ill defendant, when the

medication is not substantially likely to restore competence, and the drugs are likely to have side

effects that will interfere significantly with the defendant's ability to assist counsel in their defense.

Statement Of Facts

Our client, Jason Nelson ( ”Nelson ”) has been charged with manslaughter. Nelson is mentally ill and is

currently confined to a mental institution. Because of his mental illness, Nelson cannot assist in his

defense and thus is not competent to stand trial. The prosecutor in this case has made a motion asking

the court to forcibly administer antipsychotic drugs to Nelson in order to render him able to stand trial.

Medical experts have determined that Nelson has an approximate 20 percent chance of being rendered

competent if he receives the medication the state intends to administer. Nelson is vehemently opposed

to receiving such drugs, primarily because he has suffered significant and debilitating side effects from

the drugs when he has taken them in the past. The side effects include drowsiness, lethargy and

confusion.

Analysis

The Supreme Court has specifically ruled on the issue of forced medication for mentally ill

prisoners and detainees in Washington v. Harper, 494 U.S. 210 (1990), and Sell v. United States, 539

U.S. 166 (2003).

In Harper, an incarcerated inmate sued the state of Washington over the issue of involuntary

medication, specifically antipsychotic medication. The United States Supreme court ruled that the Due

Process Clause permits a state to treat an incarcerated inmate having a serious mental disorder with

antipsychotic medication against his will, under the condition that he is dangerous to himself or others

and the medication prescribed is in his best medical interest. The Court concluded that although Harper

possessed a significant liberty interest in avoiding unwanted antipsychotic medication under the Due

Process Clause of the Fourteenth Amendment, such a liberty interest was not absolute.

In Sell, the Court affirmed that involuntary administration of antipsychotic medication for the

purposes of restoring a defendant’s competency to stand trial can be an appropriate means of acting in

the state's interest to bring to trial defendants who are charged with serious crimes, overriding the

defendant's right to refuse. Sell, a former dentist with a documented history of mental illness, was

charged with fraud in 1997. Once ruled incompetent, Sell was hospitalized for treatment. The hospital

staff concluded that Sell would benefit from antipsychotic drugs, as medication would likely render

him competent to stand trial. When Sell refused to take the drugs, the hospital staff sought the district

court's permission to forcibly administer the medication. The magistrate issued an order to forcibly

medicate Sell, and the district court and court of appeals affirmed the order. Considering Sell's case on

appeal, the Supreme Court determined that the Constitution permits involuntary medication of a

mentally ill defendant to restore the individual's competence, in limited cases where a four factor

standard is met (Sell v. United States, 539 U.S. 166, 180-82 (2003), hereafter referred to as the "Sell

test."). The Sell test requires: (1) important governmental interests that are (2) significantly furthered by

involuntary medication, which is (3) necessary to further those interests, and is (4) medically

appropriate.

In Harper, the Supreme Court made clear that the forced medication of inmates with mental

disorders could be ordered when the inmate was a danger to themselves or others and when the

medication is in the inmate's own best interests.

In Sell, the United States Supreme Court stated that a court should first consider if forced

medication is warranted for purposes set out in Harper related to the individual's dangerousness to

himself or others, before considering forcibly medicating a defendant against his or her will, for the

purposes of restoring a defendant's competency to stand trial. Sell v. United States, 539 U.S. 166, 181–

82 (2003)

In Nelson's case, there is no question of dangerousness that would allow involuntary medication

on Harper grounds. In this case, when involuntary administration of medications would be solely for

restoration of competence, the standards set forth by the Supreme Court in Sell would be most

appropriate.

The first factor a court must consider under Sell is if important governmental interests are at

stake. The Government’s interest in bringing to trial an individual accused of a serious crime is

important. However, courts must consider each case’s facts in evaluating this interest because special

circumstances may lessen its importance, e.g., a defendant’s refusal to take drugs may mean lengthy

confinement in an institution, which would diminish the risks of freeing without punishment one who

has committed a serious crime. In the present case, Nelson is charged with Manslaughter. Pennsylvania

law sets voluntary manslaughter as a first degree felony. If convicted, Nelson will face a sentence of

imprisonment for up to 20 years. 18 Pa. Cons. Stat.§§1103-2503. The prosecution will likely prove that

bringing Nelson to trial represents an important government interest, thereby satisfying the first Sell

factor.

The second factor a court must consider under Sell is whether forced medication will

significantly further those concomitant state interests. It must find that medication is substantially likely

to render the defendant competent to stand trial and substantially unlikely to have side effects that will

interfere significantly with the defendant’s ability to assist counsel in conducting a defense.

It is unlikely that the prosecution will be able to satisfy this second factor as Nelson has

previously taken the medication which the state intends to administer, and experienced significant and

debilitating side effects, including drowsiness, lethargy, and confusion. These side effects would likely

interfere with his ability to assist counsel in his defense. In addition, the courts would not find that

antipsychotics are substantially likely to render Nelson competent to stand trial as medical experts have

determined that there is only an approximate 20 percent chance of medication being effective in this

case. The standards by which medication's efficacy should be measured have been established in

United States v. Gomes, 387 F.3d 157 (2d Cir. 2004), and United States v. Ghane, 392 F.3d 317 (8th Cir.

2004).

In Gomes, Aaron Gomes, a convicted felon facing a term of 15 years imprisonment for unlawful

possession of a firearm, was found to be incompetent to stand trial due to a psychotic delusional

disorder. In light of his refusal to take antipsychotic medications to treat his mental illness, the

government sought to allow medical personnel of the federal Bureau of Prisons to involuntarily treat

him with antipsychotic medications in order to render him competent for trial. On appeal, the Second

Circuit Court of Appeals noted the district court's reference to the Bureau of Prisons' 70 percent success

rate in restoring competence with antipsychotic medication, both on voluntary and involuntary bases.

The court concluded that a 70 percent chance of restoring a defendant's competence through

antipsychotic medications was a sufficient likelihood of success to satisfy the second factor of the Sell

test.

In Ghane, the Eighth Circuit Court of Appeals decided that a pre-trial detainee, incompetent to

stand trial, could not be medicated involuntarily because the Sell test requires that medication be

“substantially likely” to restore competence. Hessam Ghane, a 54-year-old resident of Kansas City,

Missouri, was was charged federally with possession of a chemical weapon. The federal magistrate,

after a hearing, found Ghane incompetent to stand trial. A forced-medication hearing was held, with

psychiatric testimony that Ghane's Delusional Disorder had a 10 percent chance of responding. The

magistrate found that this satisfied the Sell requirement that medication be “substantially likely” to

restore competence and issued an order for involuntary medication. Ghane appealed. The Eighth

Circuit Court of Appeals stated that a 10 percent chance of success is not “substantially likely” under

any standard, reversing the order for involuntary antipsychotic medication: “We cannot accept that a

'glimmer of hope' for…restored competence rises to the level of 'substantial likelihood,' as mandated by

the Supreme Court's holding in Sell. A five to ten percent chance of restored competence cannot be

considered substantially likely under any circumstances.” United States v. Ghane,392 F.3d 317, 320

(8th Cir. 2004). The court cited United States v. Gomes to illustrate the meaning of “substantially

likely” to restore competence: 70 percent in Gomes is “substantially likely,” whereas 10 percent in this

case was not.

In the present case, medical experts have determined that Nelson has a 20 percent chance of

being rendered competent if he receives the medication that the state intends to administer. The court

would likely find that, as in Ghane, 20 percent is not “substantially likely”.

To satisfy the third Sell factor, the court must conclude that involuntary medication is necessary

to further state interests and find that alternative, less intrusive treatments are unlikely to achieve

substantially the same results. A particular treatment is “necessary,” according to Sell, only when there

are no alternative, less intrusive treatments available that are likely to achieve the same results. Because

Nelson refuses to voluntarily take the medications, alternative treatments must be attempted and proven

unsuccessful before involuntary administration of medication is deemed necessary to further the

Governmental interest.

The court must conclude that administering the drugs is medically appropriate to satisfy the last

factor in the Sell test. A treatment is “medically appropriate” when “it is in the patient’s best medical

interest in light of his medical condition.” Sell v. United States, 539 U.S. 166, 181 (2003). To decide the

medical propriety of a given treatment, physicians must weigh its benefits against its costs (side-

effects). Nelson is opposed to receiving such drugs, primarily because he has suffered significant and

debilitating side effects from these drugs when he has taken them in the past. Given that there is only a

20 percent chance of the medications rendering Nelson competent, the benefits of forcibly medicating

him are unlikely to outweigh the harm the medications would cause him.

Conclusion

Absent of any evidence of Nelsons' danger to himself or others, the burden will fall on the Government

to prove it can satisfy the Sell requisites. While the prosecution will likely satisfy the first Sell factor, as

bringing Nelson to trial is an important government interest, they are unlikely to satisfy the remaining

three factors. Antipsychotic medications are not appropriate in this case given the substantial

unlikelihood of their efficacy, the likelihood of harmful side effects which will jeopardize Mr. Nelson’s

ability to assist counsel, present a defense, or otherwise receive a fair trial, and the availability of less

intrusive treatment methods.