Noggers gotta nog

 Constitutional Rights and IST

 Collusion is an agreement between two or more parties, sometimes illegal and therefore secretive, to limit open competition by deceiving, misleading, or defrauding others of their legal rights, or to obtain an objective forbidden by law typically by defrauding or gaining an unfair market advantage. It is an agreement among firms or individuals to divide a market, set prices, limit production or limit opportunities. It can involve "wage fixing, kickbacks, or misrepresenting the independence of the relationship between the colluding parties". In legal terms, all acts effected by collusion are considered void.

1. Involuntary Medication in Response to an Emergency

Penal Code Section 1370(a)(2)(B)(iv) provides that the state may involuntarily medicate an IST in an emergency, as defined by Welfare and Institutions Code section 5008(m).

California Department of Mental Health (DMHI) Long Term Care Division Special Order No. 333.04 (DMH Special Order 333.04) sets forth DMH’s standards and procedures for involuntarily medicating individuals found IST. Citing Penal Code section 5008(m), the DMH Special Order provides that state hospitals can prescribe antipsychotic medication for emergency situations, for the preservation of life or for the prevention of serious bodily harm to the individual or others. “Emergency” is defined as an imminent danger to self or others as a result of mental disease, defect or disorder. The Special Order specifies that involuntary medication can be administered only for as long as the emergency exists, and must be provided in the manner least restrictive to the individual’s personal liberty. DMH Special Order 333.04.

2. Involuntary Medication Because the IST Defendant Lacks Capacity to Consent

Involuntary medication may be administered if the court determines that: the individual lacks capacity to make decisions regarding antipsychotic medication; the individual’s mental disorder requires medical treatment with antipsychotic medication; and, if the individual's mental disorder is not treated with antipsychotic medication, it is probable that serious harm to the physical or mental health of the individual will result. Penal Code § 1370(a)(2)(B)(ii)(I).

“Probability of serious harm to the physical or mental health” of the defendant requires evidence that the defendant is presently suffering adverse effects to his physical or mental health, or that the defendant has previously suffered these effects as a result of a mental disorder and his condition is substantially deteriorating. The fact that a defendant has a diagnosis of a mental disorder does not alone establish probability of serious harm to the physical or mental health of the defendant.” Penal Code § 1370(a)(2)(B)(ii)(I).

Note that DMH Special Order 333.04 does not mention lack of capacity to consent as a potential basis on which state hospitals may administer involuntary medication to an individual committed as IST.

3. Involuntary Medication because the IST Defendant is a Danger to Others

Under the Penal Code, involuntary medication may be administered if the court determines both: (1) that the defendant is a danger to others, in that he has inflicted, attempted to inflict, or made a serious threat of inflicting substantial physical harm on another while in custody, or that resulted in his being taken into custody; and (2) that the defendant presents, as a result of mental disorder or mental defect, a demonstrated danger of inflicting substantial physical harm on others. Penal Code § 1370(a)(2)(B)(ii)(II).

“Demonstrated danger” may be based on an assessment of the defendant's present mental condition, including a consideration of past behavior of the defendant within six years prior to the time the defendant last attempted to inflict, inflicted, or threatened to inflict substantial physical harm on another, and other relevant evidence.” Penal Code § 1370(a)(2)(B)(ii)(II).

Although the Penal Code requires a court order for the involuntary administration of medication due to dangerousness, DMH Special Order 333.04 establishes internal procedures for authorizing such medication on an interim basis while a court order is pending. Under the Special Order, interim authority for involuntary medication due to dangerousness can be established by referring the patient to a medical staff Psychotropic Medication Review panel to determine the necessity for psychotropic medication. A social worker or nurse must act as the patient’s advocate. At least two of the three members of the panel must find that the patient meets criteria for involuntary psychotropic medication. Medication may then be ordered for 14 days. After 14 days, the panel must review the treatment outcome again and may order continued treatment for up to 180 days, or until court review has been obtained, whichever occurs sooner. 

To obtain long-term authority to administer involuntary medication on the basis of dangerousness, the Special Order states that when the patient has been referred to the Psychotropic Medication Review panel for the interim administration of psychotropic medication, the state hospital must concurrently file a letter with the court signed by the Medical Director of the facility and the treating psychiatrist attesting to the fact that the patient is a danger to self or others and requesting a court order for involuntary medication. The Special Order specifies that it is not necessary for harm to become unavoidable or take place prior to treatment. DMH Special Order 333.02.

4. Involuntary Medication to Restore Competency

A court may issue an order to medicate an IST defendant in order to restore competency to stand trial only if the defendant does not meet any of the other criteria for involuntary treatment, as discussed above. Penal Code § 1370(a)(2)(B)(iii).

California Penal Code Section 1370(a)(2)(B)(ii)(III) and DMH Special Order 333.02 delineate the requirements that must be met before medicating to restore competency. The statutory provision is modeled after the U.S. Supreme Court decision in Sell v. United States (2003) 539 U.S. 166, which sets forth the constitutional requirements under the Due Process Clause. The Special Order requires that the state hospital file a letter with the court signed by the treating psychiatrist and the Medical Director of the facility attesting to the fact that the statutory criteria for involuntary medication to restore competency are met.

Below is a comparison of the Sell requirements, their California statutory counterparts in section 1370(a)(2)(B)(ii)(III), and some of the significant judicial interpretations of the statutory provision to date. A trial court issuing an order to medicate under this subsection must comply with all of these constitutional, statutory, and common law requirements.

For more information on the right to refuse psychotropic medication for all forensic mental health clients, see, The Right to Refuse Psychotropic Medication for Forensic Mental Health Clients (October 2005), Disability Rights California Publication #5455.01.

Ochlocracy versus anarchism

Anarchism, meaning "without government", is a term covering various anti-authoritarian philosophies and movements, generally viewing themselves as socialist, which are dedicated to the replacement of states and/or governments (either capitalist governments or all governments) by various suggested alternatives such as autonomous self-realizing democratic structures. Anarchists reject the criticism that anarchism is inherently ochlocratic as a mischaracterization of anarchism, arguing that it includes theories of structure and mutual support rooted in democracy and free association.