Competence to Stand Trial

Facts of the Case

Hessam Ghane, a 54-year-old resident of suburban Kansas City, Missouri, was admitted to an emergency department for depression with suicidal ideation. He told hospital staff that he had potassium cyanide at home for the purpose, having stockpiled it from a past job as a chemist. The hospital notified police, who, with Ghane's consent, searched his home and found the potassium cyanide under his kitchen sink.

Ghane was charged federally with possession of a chemical weapon, a seeming overreaction perhaps attributable, post-9/11, to Ghane's being an immigrant from the Middle East. He probably did not help his cause by giving police the multiple-choice explanation that he planned to use the contraband for suicide, or for conducting experiments, or for teaching purposes.

The federal magistrate, after a hearing, found Ghane incompetent to stand trial. A few weeks later, a forced-medication hearing was held, with psychiatric testimony that Ghane's Delusional Disorder (persecutory type) had a 10 percent chance of responding. The magistrate found that this satisfied the Sell requirement that medication be “substantially likely” to restore competence and issued an order for involuntary medication. Ghane appealed.

Ruling and Reasoning

Under Sell, four factors must be established before an order for involuntary medication to restore competence may be issued: First, a court must find that…[t]he Government's interest in bringing to trial an individual accused of a serious crime is important… . Second, the court…must find that administration of the drugs is substantially likely to render the defendant competent to stand trial [and] that…the drugs [are] substantially unlikely to have side effects that will interfere significantly with the defendant's ability to assist counsel in conducting a trial defense… . Third, the court must conclude that involuntary medication is necessary to further those interests… . Fourth, …the court must conclude that administration of the drugs is medically appropriate… [539 U.S. at 180–2; emphasis in original].

In Ghane, the Eighth Circuit stated that “[t]he second and fourth Sell factors are at issue here”: whether the medication is “substantially likely” to succeed and whether it is “medically appropriate” (392 F.3d at 319). Curiously, the court never mentioned the fourth factor again.

As to the second factor, “substantially likely,” the court first noted that the Supreme Court in Sell had neglected to address the standard of proof. That omission notwithstanding, a 10 percent chance of success is not “substantially likely” under any standard, the court declared, reversing the order for involuntary antipsychotic medication: We cannot accept that a “glimmer of hope” for…restored competence rises to the level of “substantial likelihood,” as mandated by the Supreme Court's holding in Sell. A five to ten percent chance of restored competence cannot be considered substantially likely under any circumstances [392 F.3d at 320].

Discussion

The court cited United States v. Gomes, 387 F.3d 157 (2d Cir. 2004), to illustrate the meaning of “substantially likely” to restore competence: 70 percent in Gomes is “substantially likely,” whereas 10 percent in this case is not. Unfortunately, the court failed to notice, or perhaps simply elected not to acknowledge, that both cases involved exactly the same illness, Delusional Disorder (persecutory type). Unless antipsychotic medications are more efficacious in New England than in Missouri, this surely does not bespeak a coherent deployment of psychiatric expertise in the courtroom.

More troubling is Sell's declaration that forced medication of seriously psychotic criminal detainees should be “rare” (539 U.S. at 180). The Supreme Court noted soothingly that lengthy incarceration or civil commitment can be counted on to keep the citizenry safe, even without (1) a trial to address the psychotic person's legal rights or (2) manifestly appropriate and needed psychiatric care for his or her disease.

Putting aside the problem of applying loose statistics, whether 10 percent or 70 percent, to individual cases, Delusional Disorder is notoriously treatment resistant. It is also, like so many psychiatric disorders, insight resistant, making coerced treatment often the only treatment.

Having forgotten the fourth Sell factor, “medically appropriate,” the court sees only a “glimmer of hope” for the suicidal Mr. Ghane and, for that reason, blocks treatment. Ironically, the defendant in Sell itself, Charles Sell, also suffering from Delusional Disorder (persecutory type), has remained in custody since 1997, incompetent to stand trial and, under the Sell criteria, still unmedicated (MacCourt D, Stone AA: Caught in limbo between law and psychiatry. Psychiatr Times 22(7);1, 2005).

Can this make sense in a society that strives to be compassionate, just, and at least logical?