Forced Medication Behind Bars | AVID Jail Project


Narrator: According to the Bureau of Justice Statistics, 60% of jail inmates have symptoms of serious mental illnesses. Jails can force these inmates and others to take psychiatric medications even if the inmates don’t want to. Who gets medicated and how is determined by holding hearings. Kim Mosolf, AVID Jail Attorney: Although they’re lawful, the hearings have to follow certain guidelines and procedures. Because our society highly values a person’s right to control their own medical treatment, the law requires that we follow very specific rules to protect these rights when considering forcing medical treatment. Certainly the jail can have these hearings, but they need to make sure they have them in a certain way. I’m Kim Mosolf. I’m an attorney with the AVID Jail Project at Disability Rights Washington. So generally, you have a fundamental right to control what type of medical treatment you accept or refuse. For example, if you have cancer and you don’t want to get chemotherapy, generally speaking, you can say no and not get it. Similarly, if you have a mental illness and you don’t want to take certain medications or get certain therapies, generally speaking, you don’t have to do that. Narrator: In the case of Washington v. Harper, the Supreme Court held that even people in jails and prisons posses “…a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs under the Due Process Clause of the Fourteenth Amendment.” This case lays out the specific procedures for considering whether to force medication. Kim: We came to find last year, though, in speaking with inmates at the King County Correctional Facility in downtown Seattle, that, in fact, there were significant problems in how the jail was protecting these inmates’ Due Process rights at these forced medication hearings. Narrator: If the jail is successful in ordering forced medication, they must always give the ordered inmate a chance to take medications voluntarily. If the person refuses, corrections officers are authorized to use force in order to physically restrain the person on a board while a nurse gives the person a shot of antipsychotic medicine. These forceful medication orders can last for months. Kim: When we’ve spoke with a lot of people in the jail who were subject to these forced medication hearings and orders, they talked about a lot of reasons why they may not want to take the medications. My name is Dwayne Stelivan. Dwayne Fitzgerald Stelivan. Since I’ve been diagnosed with a mental disorder, I’ve been in and out of King County [Jail] several times. A lot of that medication has side effects. I think I was taking Zyprexa I noticed my vision getting blurry. I’m knowing that it’s the effects of the medication. I’m Tyler. I’m 23-years-old. I’ve had a bad experience once before, a couple of years ago. I got a shot of Haldol and I had tardive dyskinesia. Your muscles seize up. It was pretty awful. It was the worst pain I’ve ever been through in my life. I’m Bob Boruchowitz. I’m the Director of the Defender Initiative and Professor from Practice at Seattle University School of Law. The impact of the medication, which could be sedating to the person, could affect very much how they look, both to a judge and ultimately to a jury. Kim: That can be very relevant if that inmate is not yet convicted. If that inmate is still facing charges and potential trial, because being on antipsychotics can really alter how you present to the world. Dwayne: When I made it back from Harborview [Medical Center] to King County Jail the doctor I dealt with previously, on a different detention in King County Jail, he’s coming back with the same medication again, “I think you need this medication.” I’m like, “At that time, I was misdiagnosed. Now my diagnosis is Bipolar, and I’m dealing with it with no medication.” He’s like, “No, you’re gonna need medication and I can’t let you move or let you leave.” He’s the one who brought the involuntary panel. Narrator: We asked the King County Jail to comment on the issues of forced medication addressed in this video. They wrote to us saying: “While you underscore in your video a patient’s right to refuse treatment, we also hold that patients have a fundamental right to alleviation of decompensation and acute distress that is a direct result of their current presenting symptoms especially when one of those symptoms is a lack of current insight or reasonable decision making.” Kim: Someone might wonder, why does the jail want to force a person to take antipsychotic medication if the person’s already locked up? I think it can be for a variety of reasons. I think, certainly, the jail’s psychiatric and medical staff is trying to help that person and treat that person, and when someone with mental illness is in a jail, which is really not the right place for them to be, it’s not a treatment facility, the jail and psychiatric health staff are really limited in the tools they have available, and for psychiatric conditions, one of those main tools is antipsychotic medications. They can have great success with those, and I think that that is why they oftentimes seek these forced medication hearings. Narrator: Jails have their reasons for wanting to force medicate, while inmates have their reasons for not wanting to be medicated. The hearing is meant to weight these two options in order to make a fair decision as to whether or not the inmate will ultimately be forcibly medicated. When you think of a hearing, you probably think of everyone gathering in the courtroom. The jail on one side and the inmate on the other. Each side’s lawyer argues their point of view, offers evidence, and the judge rules. But in this type of hearing, the jail doesn’t tell the inmate’s criminal defense attorney that the hearing is even taking place. The inmate doesn’t get an attorney at all. They get what’s called a lay advocate, who’s a member of jail health staff. Kim: The lay advisor advocate is supposed to take a somewhat active role in putting forth the person’s position in terms of whether they want or don’t want medications and why, and we saw pretty consistently that the advisor was not doing that in these hearings, and may not have even understood that that was their role. Bob: To call the person a lay advocate implies that they’re actually an advocate for the person. If they’re advising them, they should be advising them on what alternatives there might be, as well as on how to present their case to the people making the decision in the jail. Kim: Also, a lay advisor or advocate should, under the law, have some knowledge of psychiatric medication. Enough so that they can really challenge the psychiatrist’s recommendation and have some basis in understanding to do that. Bob: That would be at a minimum what would be needed. Narrator: Jails only give a 24-hour notice of the hearing, making it hard to gather witnesses and basically impossible to call an expert witness, and the jail isn’t required to hear those witnesses. If they do, it’s usually by calling them on a cell phone during the hearing. There’s no judge. There’s no jury. Everyone running and ultimately deciding this hearing works for jail health services and there’s no courtroom. These hearings are usually held right in front of the inmate’s cell where other inmates can hear confidential health information. Kim: When there is a hearing held in front of one of those cells, pretty much everyone around can hear what’s happening and the information being discussed. This is confidential health information. Bob: How a person acts in jail cell surrounded by other prisoners and guards is going to be very different than they would in a room like this or in a courtroom. Kim: Now from the jail’s perspective, I think they probably would like to be able to easily hold all these hearings in a confidential setting, and again, this is why it’s probably not good to have people with serious mental illness in a jail. So, from their perspective, while they would like to take everyone out of those cells, put them in a room and have the hearing there, they have to work with security staff, who may have reservations about removing certain people from their cells. Narrator: The inmate is generally allowed to argue their point of view at the hearing. But the jail’s not actually required to allow the inmate to participate at all. Dwayne: You could participate if you want, or you don’t have to participate. At the end of it, if we say you need it, then it’s gonna be forced on you regardless to what you want. Narrator: Hearings resulted in allowing for forced medication in 25 out of the 29 cases from King County Jail reviewed by the AVID Jail Project. Kim: And when that person, if that person, decided to appeal to the director of psychiatric services there, across the board, the decisions were approved. Tyler: The last appeal review I had lasted only, not even two minutes. They just rejected the appeal. They just continued the forced medication. Kim: Also, the inmate has the right to access court appeal. It is written in the notice the inmate gets that they have, that nothing that the jail’s doing keeps them from seeking court review. But that’s all that’s written. We found in reviewing records, that they are never really told that, certainly never helped with that process, and oftentimes don’t even know that they have that right. Tyler: You’re allowed to have a judge review it? Kim: So you didn’t even know that? Tyler: I had no idea. Kim: When we have sought advice from appellate attorneys, other criminal defense attorneys, about how a person in jail would seek court review or appeal, no one really knows exactly how that would work. Bob: Basic fundamental fairness, Due Process, requires that there be some sort of opportunity for judicial review. So unless there is a established procedure to get them into court, there’s a real question in my mind as to whether this kind of forced medication administrative decision is lawful, even under the case law that we have, if there’s no meaningful judicial review. Kim: So our ultimate point and goal in doing this investigation, is not to condemn the jail. I don’t think that the jail health staff is doing this from a malicious standpoint. They are doing their best and they are trying to treat these people as they need to do and as they want to do, to get them out of solitary, to get them services. The issue is that it implicates an incredibly important right to control over your body, to your mind, and when that is at stake, there has to be some process, some protection and some transparency, and that’s where our concerns lie. Kim: For more information on the AVID Jail Project and more inmate stories, please visit AVIDjailproject.org.