Administration of Psychotropic Drugs to a Non-Consenting Defendant

Subject:

Requested By: Honorable Henry L. Stevens, III Judge of Superior Court Fourth Judicial District

Question: When administration of psychotropic medications to a criminal defendant who may be incompetent to stand trial is likely to make the defendant competent, can the medication be administered without the patient’s consent?

Conclusion: Yes, if there is direct psychiatric testimony that the medications are likely to make the defendant competent and that the medications do not create a substantial risk of serious or long term side effects to the defendant.

The question presented involves facts that should be set out in some detail. The defendant had been committed to Dorothea Dix Hospital where he was to be examined by psychiatrists to determine whether he was capable of proceeding. See G.S. 15A-1002. A hearing was held on the matter after the commitment. At the hearing, a psychiatrist at Dix testified that at present, the defendant may not be competent to stand trial but that he was likely to become competent if he would take psychotropic medications which he had been refusing. The question is whether the defendant can be required to take the necessary medications.

It is our conclusion that under some circumstances a psychiatrist may administer psychotropic drugs to a criminal defendant for the purpose of making him competent. There is ample authority to support this conclusion. In State v. Law, 270 S.C. 664, 244 S.E.2d 302 (1978), the Supreme Court of South Carolina addressed the matter as follows:

"Counsel for the appellee apparently take the position that under no circumstances can medication be administered a defendant without his consent. They contend that such would be violative of his bodily integrity. We do not feel that such an absolute right exists. It is our view that medication may be administered without the consent of a defendant under compelling circumstances, including those where the medication is necessary to render a defendant competent to stand trial. We are of the opinion that such necessity would constitute a compelling state interest justifying infringement upon the right to bodily integrity. However, such a practice should be sparingly used with prior notice to defense counsel." Id. at 307.

The Supreme Court of New Hampshire dealt with the same argument and reached the same result. See State v. Hayes, 118 N.H. 458, 389 A. 2d 1379 (1978). There the court specifically authorized the trial court to compel the defendant to be under the influence of medications at least four weeks prior to his trial. Id.

We have researched the point and we find no published decisions which indicate a contrary conclusion.

When the General Assembly drafted the statutes providing for determination of incapacity to proceed (G.S. 15A-1001, et seq.), it did not address this issue. Thus, there are no statutes which specifically authorize the court to order that treatment be administered to make a defendant competent in any given case. Still, the fact that the General Assembly did not contemplate the problem does not relieve the court of its duty to deal with it.

Several cases decided by our Supreme Court are helpful. Our Court has twice observed that defendant otherwise incompetent may become legally competent when psychotropic drugs are administered. State v. Buie, 297 N.C. 159, 254 S.E.2d 26 (1979), State v. Potter, 289 N.C. 238, 204 S.E.2d 649 (1974). The opinions in these cases do not indicate that the defendants were forced to accept drugs. They do show, however, that our Supreme Court has recognized the usefulness of these drugs in helping defendants to arrange their thought processes to that they will be competent to stand trial.

It is important that the Court recognize the state’s interest in bringing the criminal defendant to trial. The individual defendant also has an interest, but the civil rights cases recognizing a limited right to refuse psychotropic medications focus on the possible harmful side effects such as tardive dyskenisia that might or might not result from long term use of these drugs. See Rennie v. Klein, 653 F.2d 836 (3rd. Cir. 1981) (en banc); Rogers v. Okin, 634 F.2d 650 (1st Cir.), cert. granted, U.S. , 101 S.Ct. 1972, 68 L.Ed.2d 293 (1981). A criminal defendant compelled to accept medication for a short period of time would not be subjected to a substantial risk of serious or long term side effects. The importance of the state’s interest is reflected in the words of Justice Brennan in his concurring opinion in Illinois v. Allen, 397 U.S. 337 (1970) which is quoted in State v. Law, supra, 244 S.E.2d at 307.

"The safeguards that the Constitution affords a criminal defendant presuppose that the government has a sovereign prerogative to put on trial those accused in good faith of violating valid laws. Constitutional power to bring an accused to trial is fundamental to a scheme of "ordered liberty" and prerequisite to social justice and peace."

If this defendant has a constitutional interest in maintaining his bodily integrity, the state’s interest in bringing the individual to trial clearly outweighs it.

We emphasize that there should be direct psychiatric testimony to show that the medications are likely to produce competence and that the medications do not create a substantial risk of serious or long term side effects. Given these circumstances, the Court may order the commitment of a defendant who has been found to be incompetent or possibly incomplete to a state hospital for the purpose of administration of medication and other treatments that will enable him to assist in preparation of his defense and his trial. If the defendant refuses to accept the medications, the Court may order that the medications be administered without the defendant’s consent.

Rufus L. Edmisten Attorney General

Ben G. Irons, II Assistant Attorney General

James Peeler Smith Assistant Attorney General