Involuntary Medication of Competency to Proceed Patients

Facts of the Case

Raytrell Fitzgerald was arrested and charged with unlawful possession of a firearm while he was subject to a harassment injunction. His competency to proceed was raised. The competency evaluator diagnosed Mr. Fitzgerald with schizoaffective disorder. He was ultimately found not competent to stand trial and committed to the state hospital for restoration. During a subsequent competency examination, the evaluator noted that Mr. Fitzgerald refused to take medication. The evaluator opined that Mr. Fitzgerald was not competent to refuse medication or treatment and that “[t]reatment with antipsychotic medication is known to be effective in treating symptoms of psychosis, which is precluding [Mr. Fitzgerald’s] competence to proceed” (Fitzgerald, p 169). The circuit court found the evaluator’s opinion persuasive and ordered the administration of involuntary medication to restore competency.

Following this ruling, Mr. Fitzgerald filed an appeal of the involuntary medication order. He challenged the constitutionality of Wis. Stat. § 971.14, specifically noting that the statute did not comply with the criteria for involuntary medication for competency restoration outlined in Sell. Under the state statute, involuntary administration of medication to restore competency may be granted when the defendant is incapable of understanding the advantages, disadvantages, or alternatives of accepting medication; or the defendant is incapable of applying understanding of those to the defendant’s mental illness, developmental disability, or substance disorder. The state argued that the involuntary medication order followed the Sell criteria since the judicial Form CR-206, a preprinted form used by judges for involuntary medication orders for treatment to competency, contained the Sell criteria.

Mr. Fitzgerald petitioned to bypass the court of appeals for review of the involuntary medication order. The Wisconsin Supreme Court granted the petition. Before the Wisconsin Supreme Court heard the case, Mr. Fitzgerald was found competent; he pled guilty and was sentenced to time served. The state moved to dismiss Mr. Fitzgerald’s petitions as moot. Given the importance of the matter, the Wisconsin Supreme Court denied the motion and heard the case.

Ruling and Reasoning

The Wisconsin Supreme Court held that Wis. Stat. § 971.14(3)(dm) and Wis. Stat.§ 971.14(4)(b) (2017-2018) did not comply with Sell and were therefore unconstitutional. More specifically, a patient could be ordered to receive involuntary medication to restore trial competence solely on the basis of lacking competency to refuse medication. This was a violation of due process. Citing Washington v. Harper, 494 U.S. 210 (1990), the court stated: “The mere inability of a defendant to express an understanding of medication or make an informed choice about it is constitutionally insufficient to override a defendant’s ‘significant liberty interest in avoiding the unwanted administration of antipsychotic drugs’” (Fitzgerald, p 175, citing Harper, p 221).

The Wisconsin Supreme Court emphasized that Wis. Stat. § 971.14(3)(dm) and Wis. Stat.§ 971.14(4)(b) do not require that an important government interest be at stake (the first Sell factor), they “merely require the circuit court to find probable cause that the defendant committed a crime—not necessarily a serious one” (Fitzgerald, p 175). The court also noted that the Wisconsin statutes do not require the circuit court to determine whether the medication is substantially likely to restore a defendant’s competency or whether it could cause side effects that could interfere with the fairness of the trial (the second Sell factor). It requires only an opinion in the expert report about “the likelihood that the defendant, if provided treatment, may be restored to competency within the [statutory] time period” (Fitzgerald, p 176). The Wisconsin Supreme Court also noted that the Wis. Stat. § 971.14(3)(dm) and Wis. Stat.§ 971.14(4)(b) do not require the circuit court to determine whether the involuntary treatment is necessary to further important government interests (the third Sell factor). Finally, the Wisconsin Supreme Court determined that instead of the circuit court deciding whether the involuntary treatment is medically appropriate (the fourth Sell factor), the statutes delegate this task to “whoever administers the medication or treatment to the defendant” (Fitzgerald, p 176). Accordingly, the Wisconsin Supreme Court determined that the Wis. Stat. § 971.14(3)(dm) and Wis. Stat.§ 971.14(4)(b) set standards for involuntary medication for the purpose of competency restoration that fell below the minimal constitutional threshold as established by Sell.

The Wisconsin Supreme Court also rejected the state’s argument that the judicially created Form CR-206 protected Mr. Fitzgerald’s constitutional rights. The court stated: “A judicially created form cannot save a constitutionally infirm statute” (Fitzgerald, p 177). The court subsequently vacated the circuit court’s order for involuntary medication.

Notably, the Fitzgerald concurrence emphasized that the Wis. Stat. § 971.14(2) allowed for alternative means to pursue involuntary medication other than Sell; specifically, if the defendant was dangerous. The justices noted that determination of dangerousness is likely an easier task for medical experts than evaluating the Sell factors.

Discussion

The Wisconsin law under consideration in Fitzgerald allowed competency patients to be involuntarily medicated solely on the basis of lacking capacity to consent to treatment. The Wisconsin Supreme Court ruled that this was unconstitutional because it violated due process by not comporting with minimal safeguards established by the U.S. Supreme Court Sell decision. As outlined in Sell, given the individual liberty interests at stake, the standard to involuntarily medicate a person for competency restoration is more rigorous than what must be proven in other circumstances, such as to involuntarily medicate a person because of dangerousness.

Interestingly, many state high courts have not directly addressed Sell in the 18 years since it was decided (Katz N. How the states can fix Sell: Forced medication of criminally ill defendants in state courts. Duke L.J. 2019; 69:735–773). Other states have revised their laws following Sell with some states even doing so before the Sell decision (Shannon B. Prescribing a balance: The Texas legislative responses to Sell v. United States. St. Mary’s L.J. 2009; 41: 309–350; Norko MA, Cotterell MS, Hollis T: The Connecticut experience with Sell legislation. J Am Acad Psychiatry Law. 2020; 48(4):473-483). Though Wis. Stat. § 971.14 had been revised twice since the 2003 Sell decision, neither of these revisions incorporated the Sell factors. Following the Fitzgerald decision, a footnote was inserted in Wis. Stat. § 971.14 referencing the Sell criteria, though the actual text of the law has not incorporated Sell, and the capacity to consent language remains. In Wisconsin, confusion still exists regarding when and how to apply Sell with at least one subsequent appellate case requiring submission of a detailed treatment plan by the treating psychiatrist (State v. Green, No. 2020AP298-CR (Wis. Ct. App., Feb. 25, 2021)). In addition, despite the fact that Sell was to only be used in rare circumstances, many courts in Wisconsin do not authorize involuntary medication for competency defendants on alternative grounds, such as dangerousness.

In summary, the Fitzgerald case highlights certain problems arising from a lack of legislative response following Sell. This may well be the case in other states that have not taken a proactive approach to incorporating Sell into relevant law. Finally, as the Fitzgerald concurrence and Sell emphasized, states should still consider pursuing involuntary medication for competency patients by alternative means such as dangerousness, using a Sell hearing only in rare circumstances.