Involuntary medication and pretrial detainees: What the law says

Many clients struggle with mental health issues, and the criminal court process provides avenues to avoid a conviction and punishment when the person is taking medication and complying with treatment. However, getting the person to accept a medication regiment may be a struggle. For some, delusions and paranoia impair their legal competence to participate in their case.

When a criminal defendant's mental competence to stand trial is called into doubt pursuant to Penal Code § 1368, California law mandates an extensive set of procedures to attempt to expeditiously restore the defendant to competence consistent with the right to speedy trial and the public's interest in the speedy adjudication of criminal matters. Restoration frequently requires the administration of medication under the supervision of a psychiatrist. In People v. Lewis (Appellate Case No. A171414), the 1st District Court of Appeals recently addressed what procedures must be afforded an incompetent defendant who is unwilling, or unable, to consent to the administration of medication before the government can administer medication involuntarily.)

Lewis was charged with a violation of probation from a prior assault charge and a new assault charge following his apparently random aggravated assault of a father and his juvenile son, during which Lewis struck both victims with a rock, causing serious bodily injury. His attorney declared doubt as to his competence. Both parties submitted a court-appointed evaluator's report confirming his incompetence, indicating that he required psychotropic medication to restore his competence.

At a subsequent hearing, defense counsel advised the mental health court that Lewis would consent to taking medication, and objected to any order for involuntary medication absent a full evidentiary hearing at which counsel could cross-examine the evaluator. The court ruled that Penal Code § 1370(a)(2)(B), which requires that the court "hear and determine" whether the defendant has the capacity to consent to medication, does not require a full evidentiary hearing and ordered such medication over the defense's objection. Lewis timely appealed.

On appeal, Lewis brought both due process and equal protection challenges. The court of appeals first dispensed with an apparently underdeveloped statutory construction argument, finding that the plain language of § 1370(a)(2)(B) does not mandate a full evidentiary hearing and that other provisions which do so require state the requirement in plain language, indicating that the legislature knows how to mandate an evidentiary hearing when it wants to.

Procedural due process requires weighing the three Matthews factors: (1) The private interest that will be affected by the government action; (2) The risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) The government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

The first factor clearly weighed in Lewis' favor as the right to be free from bodily invasion is an important liberty interest. The other two factors, however, favored the government. Lewis did not persuade the court below, or the court of appeals, that the addition of cross-examining the evaluator was likely to add any meaningful safeguards against an erroneous determination by the court. The court was already required to rely on expert reports, and Lewis had the opportunity to contact the evaluator for additional information or reports and introduce that information through counsel at the hearing. The court also retained the power to order live testimony if the issue was sufficiently close. On the third factor -- the government's interest -- the Court of Appeals noted that the fiscal and administrative burdens of holding full evidentiary hearings in every involuntary medication case would be substantial. Doing so would also run counter to the constitutional requirement that incompetent defendants be timely evaluated and treated to attempt to restore them to competency. Lewis' due process challenge failed.

In his equal protection argument, Lewis identified three comparator groups of individuals who receive disparate treatment: Other civil committees, such as those found not guilty by reason of insanity, already-convicted inmates in county jail or state prison, and other pretrial incompetent defendants who initially consented to medication and then subsequently withdrew their consent. The court of appeals rejected the argument that other civil committees are subject to disparate treatment from Lewis. No statute mandates evidentiary hearings in their cases, and the passing reference to an evidentiary hearing Lewis relied on from a prior case was likely dicta.

The court assumed, without deciding, that inmates and other incompetent defendants subject to medication under the separate subdivision of Section 1370 regarding withdrawal of consent to medication are similarly situated to Lewis and subject to disparate treatment. Nevertheless, as to both groups, there was sufficient justification for the difference in procedural rights. At the outset, the court rejected Lewis' argument for the application of strict scrutiny, finding that only rational basis review applies to challenges to differences in procedures in civil commitment schemes.

There was a rational basis for the disparate treatment. Many mentally ill inmates will require long-term treatment interventions. Perhaps more importantly, there is no constitutional clock ticking for addressing their mental challenges. Pretrial incompetent detainees, on the other hand, must be restored to competence expeditiously to stand trial. The legislature could rationally have preferred expedited proceedings for those defendants.

The third group -- incompetent defendants ordered to take medication after previously having given consent -- presented a closer question under equal protection. However, that group by definition was not ordered to be involuntarily medicated at an earlier stage despite the mental health court having the authority to do so. To now be ordered involuntarily medicated, there must have been a change in circumstance or a deterioration in their condition, or the issue was sufficiently unclear that the court could not make the determination based only on the evaluator's report. The legislature could rationally have concluded that in these more complex situations, more procedural safeguards are necessary.

Lewis confirms the mental health court's authority to order involuntary medication using expedited procedures, relying only on an evaluator's report and the arguments of counsel, without offending due process or equal protection principles.