September-October 2017

‘Drugs don’t work in patients who don’t take them’

Christopher W. Ponder

Assistant Criminal District Attorney in Tarrant County

The legal ins and outs of administering psychiatric drugs when a civilly committed patient or defendant refuses to take them willingly.

    The world of mental health issues pervades both criminal and civil law. The great axiom of the day is that jails have become the de facto mental institutions. What so often causes detention in a jail facility for a Penal Code violation or in a mental health facility under a civil function is the fact that a mentally ill person has, for some reason, stopped taking her medication.
    Medication for the mentally ill has advanced dramatically in the last 60 years, beginning with the first “magic bullet” medication for mental illness: Thorazine. More than 60 years ago, Time magazine called Thorazine the “wonder drug of 1954.” Its development and other early psychotic medications set the stage for the deinstitutionalization of the mentally ill. The proliferation of psychiatric medications has since exploded, with spending in the United States going from $400 million in 1987 to $40 billion today.
    Pharmaceuticals as the magic bullet for mental illness is not a position everyone accepts. Personal liberty considerations always arise when there is a discussion of the government forcing medical treatment. On more than one occasion I have heard ad litem attorneys citing a book titled Anatomy of an Epidemic by Robert Whitaker, which questions why the number of people suffering from mental illness has skyrocketed in the last 50 years despite the advances in medications.1 The book suggests that the widespread use of psychiatric medications could actually be fueling the epidemic.
    Psychiatrists and medical professionals whom I’ve encountered, however, believe that the consistent use of psychiatric medications is an essential part of treating mental illness. But, as former U.S. Surgeon General C. Everett Koop observed, “Drugs don’t work in patients who don’t take them.”2
    Studies suggest that the mentally ill most often cease taking medication due to anosognosia, or a lack of awareness of their illness.3 It would seem that in a clinical setting like an inpatient mental health facility or a jail that a person could be more easily encouraged to appreciate the depth of her mental illness and the consequences of failing to abide by the prescription regimen. Covert or surreptitious administration of psychiatric medication is not an option; such actions are inconsistent with medical ethics. It should be noted that medications to treat a psychiatric emergency are not affected by the procedural and substantive laws discussed in this article.4

Laws allow forced medication
Setting aside the issue of the ethics, both medical and legal, and medical efficacy of forced psychiatric medications, constitutional and statutory law both authorize the administration of psychiatric medication irrespective of the patient’s refusal.5
    For patients who are under a court order to receive inpatient mental health services (i.e., civil commitment), a treating physician may file an application in a probate court (or a court with probate jurisdiction) for forced psychiatric medica- tions if: 1) the patient lacks capacity to make the decision for herself; 2) the medication is the proper course of treatment; and 3) the patient refuses to take the medication voluntarily.6 Although the medication application can be filed before the patient has been committed, the order may not be granted until after the court orders the patient to receive inpatient mental health services.7
    Once the application is filed, the patient is entitled to receive a copy of the physician’s application and notice of the hearing “immediately after the time of the hearing is set.”8 Further, the court must appoint an attorney who is knowledgeable in the subject area, and the patient is entitled to meet with the attorney “as soon as is practicable” to answer questions and prepare for the hearing.9 As with all mental health hearings, the patient has a right to be present at the hearing, but she may waive that right and allow the court to proceed on the application at the hearing.
    If the court finds by clear and convincing evidence that the patient lacks capacity to make a decision regarding the proposed medication and that the proposed medication is in the patient’s best interest, the court may order that the medications be administered over the patient’s objection.10 The authorization, however, is limited to those classes of medication that the doctor requested in the application.11 The typical classes of medication, within which many individual medications fall, are antidepressants, antipsychotics, anxiolytics/sedatives/ hypnotics, and mood stabilizers.
    Section 574.106(b) of the Health & Safety Code offers a list of considerations for the court in determining the patient’s best interest. The court shall consider:
•    the patient’s expressed preferences regarding treatment with psychoactive medication;
•    the patient’s religious beliefs;
•    the risks and benefits, from the patient’s perspective, of taking psychoactive medication;
•    the consequences to the patient if the psychoactive medication is not administered;
•    the prognosis for the patient if she’s treated with psychoactive medication;
•    alternative, less intrusive treatments that are likely to produce the same results as treatment with psychoactive medication; and
•    less intrusive treatments likely to secure the patient’s agreement to take the psychoactive medication.
    Using this list of factors, if the court finds that the administration of the medication is in the patient’s best interest and the patient lacks capacity to make a decision regarding the use of the medication, the court may authorize medications to be administered without the patient’s consent.12 The order is in effect as long as the underlying commitment order is in effect.13

Incompetency to stand trial
This relatively straightforward process is contrasted by the more convoluted one in the criminal realm for defendants found incompetent to stand trial. Article 46B.086, titled “Court-Ordered Medication,” sets forth a process by which defendants may be forcibly medicated if medication is part of the treatment plan to restore competence. Before these procedures can be utilized, however, the incompetent defendant must first have had a hearing under Texas Health and Safety Code §574.106 and been found not to meet the necessary criteria.14
    This requires that any effort to administer psychiatric medication to an incompetent defendant who is refusing that medication must begin with an application to the probate court with proceedings in the Health and Safety Code. The provisions for the incompetent defendant in the probate court are slightly different from those for the civilly committed.
    Like the civil proceeding, the physician providing mental health services to the incompetent defendant makes application to the probate court and, pursuant to Texas Health and Safety Code §574.106(a)(2), the probate court may issue an order to administer psychiatric medications to a person who “is in custody awaiting trial in a criminal proceeding” who has been ordered to receive mental health services as part of her competency restoration.
    For the probate court to order administration of the medication, however, the court must find more than a lack of capacity and the patient’s best interest. The probate court must find by clear and convincing evidence that treatment with the proposed medication is in the defendant’s best interest and the defendant presents a danger to herself or others.15 The probate court analysis is conducted in the court’s capacity as guardian of wards of the state without regard to any specific interest of the State of Texas, which differs from what analysis comes in the later proceeding in the criminal court.
    The requirement that the defendant be a danger to herself or others creates an added element of difficulty in obtaining an order to medicate. Many incompetent defendants are not actively psychotic but remain resistant to medication, which hinders their competence restoration. If the incompetent defendant is not a danger to herself or others, the probate court must deny the application.
    Once the probate court denies this application, the clock begins to tick. Not later than the 15th day after the probate judge denies the application, the prosecutor may file a written motion to compel medication in the court that retains jurisdiction over the defendant,16 and within 10 days of filing the motion, the criminal court must hold a hearing on the application.17
    The hearing in the criminal court differs, procedurally and substantively, from the one that occurred in the probate court. Most importantly, the State no longer must prove that the defendant is a danger to herself or others. It remains a clear and convincing standard, but the criminal court need only find:
    1)    the prescribed medication is medically appropriate, is in the defendant’s best medical interest, and does not present side effects that cause harm to the defendant that is greater than the medical benefit;
    2)    the State has a clear and compelling interest in the defendant obtaining and maintaining competency to stand trial;
    3)    no other, less-invasive means of obtaining and maintaining the defendant’s competency exists; and
    4)    the prescribed medication will not unduly prejudice the defendant’s rights or use of defensive theories at trial.18
    The two-step process for incompetent defendants has its roots in the U.S. Supreme Court’s decision in Sell v. United States.19 In Sell, the Court held that the government may pursue forced medication requests but should evaluate the defendant’s dangerousness initially. If the defendant is not a danger to herself or others, then further inquiry should be made.
    The focus in the criminal court proceeding is on weighing the State’s interest in bringing to trial someone accused of a “serious crime” against the defendant’s right to not be administered medication that will produce side effects that will interfere with her ability to assist in trial defense. Expert testimony from physicians on the effects of the medication, both beneficial and deleterious, is the key to success in this hearing.
    Unlike the initial hearing in the probate court, the hearing in the criminal court requires the testimony of two physicians.20 One should be the doctor who prescribed the medication and the other one should be “not otherwise involved in proceedings against the defendant.”21 To satisfy Sell, it is imperative to obtain testimony from both doctors regarding the medications’ effects on the defendant’s ability to communicate with trial counsel and appropriately react to trial developments.22 If the doctors can testify that the administration of these medications will enhance, rather than impair, the defendant’s ability to participate in her own defense, courts will often defer to the professional judgment of the testifying doctors. Also, ensuring that there are not any alternative, less-intrusive means of achieving substantially same results is essential to satisfying Sell’s requirements.23
    Given the health and liberty issues at stake, it stands to reason that the procedures for securing an order to administer psychiatric medications over a patient or defendant’s objection are complex. Successfully securing the order, however, will result in shortened stays in inpatient mental health facilities and state hospitals, which is in everyone’s best interest.


1  Whitaker, R. (2010). Anatomy of an epidemic: Magic bullets, psychiatric drugs, and the astonishing rise of mental illness in America. New York: Crown Publishers.

2  Osterberg L, Blaschke T. Adherence to medication. New England Journal of Medicine, 2005; 353(5):487–497.

3  See Kessler RC, Berglund PA, Bruce ML, et al. The prevalence and correlates of untreated serious mental illness. Health Services Research. 2001;36(6 Pt 1):987-1007.

4  25 Tex. Admin. Code §414.410.

5  See Sell v. United States, 539 U.S. 166, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003); Tex. Health & Safety Code §574.106; Tex. Crim. Proc. Code Art. 46B.086.

6  Tex. Health & Safety Code §574.104(a).

7  Tex. Health & Safety Code §574.106(a).

8  Tex. Health & Safety Code §574.103.

9  Id.

10  Tex. Health & Safety Code §574.106.

11  Tex. Health & Safety Code §574.106(h).

12  Tex. Health & Safety Code §574.106.

13  Tex. Health & Safety Code §574.110(a).

14  Tex. Crim. Proc. Code Art. 46B.086(a)(4).

15  Tex. Health & Safety Code §574.106(a-1)(2)(B)(ii).

16  Tex. Crim. Proc. Code Art. 46B.086(b).

17  Tex. Crim. Proc. Code Art. 46B.086(c).

18  Tex. Crim. Proc. Code Art. 46B.086(e).

19  539 U.S. 166, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003).

20  Tex. Crim. Proc. Code Art. 46B.086(d).

21 Id.

22  Sell, 539 U.S. at 185, 123 S.Ct. at 2187.

23  Sell at 2185.