Psychoactive Medication and Your Client: Better Living and (Maybe) Better Law Through Chemistry

Abstract

Is your client taking psychoactive medication? The U.S. Supreme Court’s decision in Sell v. United States makes this question more important than ever, and means that you must not only know the answer, but must also understand exactly what the medication is and how it could affect your client’s trial-related capacities. Sell makes clear that due process permits forced psychotropic medication of a criminal defendant in order to establish their competence to stand trial, however it severely limits the circumstances under which this should be permissible, and identifies four key considerations a court will have to address in order to approve medication. Satisfying the Sell standard to involuntarily medicate a pre-trial defendant will likely require more thorough hearings, involving more extensive fact development concerning the specific types of medication proposed, their potential side effects and treatment alternatives. Even if you believe that there are no competence issues in your case, you may face greater efforts by the government to involuntarily medicate your client because they are “dangerous,” as this may provide the government an easier route to have a court approve medication. In short, whether your case involves mental health issues or not, your client’s mental health treatment - if it involves medication - is something you need to know about.

Keywords: competence, medication, involuntary, criminal, psychoactive, mental