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Professional Maturation The Judicial Arena

Advocacy

Pat DeLeon, Ph.D.

Recently the U.S. Supreme Court handed down its decision in Sell v. United States, for which the APA had filed an amicus curiae brief. The essential facts of the case center around whether an individual could be involuntarily medicated with antipsychotic drugs in order to render him competent to stand trial for fraud and attempted murder. The Court made clear that its previous holdings had affirmed that the Constitution permits the Government to administer antipsychotic drugs to render a mentally ill defendant competent to stand trial on serious criminal charges, on an involuntarily basis, if the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the trial’s fairness, and, taking account of less intrusive alternatives, is necessary to significantly further important governmental trial-related interests. The Court further noted that although the above standard may permit forced medication solely for trial competence purposes in certain instances, these instances may be rare, because the standard the Court imposed says (or fairly implies) that: there must be important governmental interests at stake; forced medication must significantly further those concomitant state interests; the involuntary medication must be necessary to further those interests and that alternative, less intrusive treatments, are unlikely to achieve substantially the same results. Finally, the lower court must conclude that administering the drugs is medically appropriate. In Sell the Supreme Court (on a 6-3 vote) held that the lower court erred in approving forced medication solely to render the defendant competent to stand trail.

The defendant (Dr. Sell) had a long history of mental illness and was being charged with serious, but nonviolent, crimes. Dr. Sell was once a practicing dentist and in 1982, after telling doctors that the gold he used for fillings has been contaminated by communists, he had been hospitalized, treated with antipsychotic medication, and eventually discharged. Subsequently rehospitalized, over the years he raised a number of complaints with various public officials. In 1997, the Government charged him with submitting fictitious insurance claims for payment. In early 1998, the Government claimed that he had sought to intimidate a witness. His behavior at his initial court appearance was, in the judge’s words, “totally out of control” and involved “screaming and shouting” and spitting in the judge’s face.

For psychology, the Supreme Court’s discussion describing the applicable standards required for ordering involuntary medication was particularly significant and go directly to the growing public policy appreciation of the importance of the psycho-social aspects of health care. The Court made clear that given the record before it, it had to assume that the defendant was not dangerous. “(T)he (lower) court must conclude that involuntary medication is necessary to further those interests. The court must find that any alternative, less intrusive treatments are unlikely to achieve substantially the same results. Cf. Brief for American Psychological Association as Amicus Curiae 10-14 (nondrug therapies may be effective in restoring psychotic defendants to competence); but cf. Brief American Psychiatric Association et al. as Amici Curiae 13-22 (alternative treatments for psychosis commonly not as effective as medication). And the court must consider less intrusive means for administering the drugs, e.g., a court order to the defendant backed by the contempt power, before considering more intrusive methods.”

We were very pleased that in crafting APA’s amicus brief, Nathalie Gilfoyle utilized the expertise of DoD prescribing psychologist Morgan Sammons and nurse-psychologist prescriber Mike Enright, former Division 42 President. Our national association took an informed and educated stance on the issue of the appropriate utilization of psychotropic medications. And, APA was clearly heard by our nation’s highest judicial body. Highlights of the APA brief:

“Psychologists have been involved in psychopharmacology and medication issues for many years. APA has two divisions that focus on psychopharmacology – Division 28, Psychopharmacology and Substance Abuse, and Division 55, American Society for the Advancement of Pharmacotherapy – and publishes the peer-reviewed Journal of Experimental and Clinical Psychopharmacology. APA members teach in medical schools and in teaching hospitals.... APA members therefore have substantial expertise and a professional and scientific interest in the appropriate use of antipsychotic drugs and other treatment modalities in that context. APA also has a broader ethical and professional interest in ensuring that persons with mental illness are treated in a humane and beneficial manner....”

“(T)he trial court should first explore possibilities of less intrusive, non-drug treatment for a particular defendant, and should not order medication unless it is convinced that non-drug therapy alone would be ineffective. In so doing, the court need not force the government to put the defendant through a pointless exercise. If the court is persuaded, based on the testimony of qualified health care professionals, that a particular individual’s disorder will not respond to non-drug therapy, the court should proceed to consider the appropriateness of particular medications proposed by the government.... In making the determination whether the proposed treatment would be medically appropriate, the trial court must be mindful of the particular characteristics of the defendant’s specific disorder and of the medications under consideration, and specifically cannot assume that a medication that is known to be effective for one disorder will likely be effective for another. Many mental disorders that bear some resemblance to one another respond very differently to medication. A court would not be justified in ordering that a defendant with one psychotic disorder be treated with antipsychotic drugs solely because those drugs benefit patients with a different disorder....”

“(T)he defendant’s interest in avoiding forcible administration of antipsychotic drugs is particularly weighty because (a) those drugs in many cases have quite serious side effects, and (b) they operate on the individual’s thought processes, and thus implicate fundamental issues of personhood and individuality, beyond those that might be implicated by compulsory introduction of other medications (such as vaccinations or sedatives). We address the side effects of antipsychotic drugs in greater detail below, but for present purposes it bears emphasis that such drugs are ‘often accompanied by toxic reactions and adverse side effects, some of which are quite serious and irreversible.’ The side effects of antipsychotic drugs are well documented in the scientific literature and have often been recognized by the courts....”

“In light of these weighty, constitutionally protected individual interests, a court should not order involuntary administration of medication to restore a defendant to competence without first exploring less intrusive, non-drug-based methods of treatment. The court should first require the government to demonstrate, by clear and convincing evidence, the absence of any non-drug therapies that would be effective in restoring competence. Moreover, ‘(w)here the expert testimony does not clearly eliminate the possibility that other [non-drug] approaches may be efficacious,... they should be attempted in an effort to determine whether medication is truly necessary to maintain the defendant’s competency.’

“There is no question that antipsychotic drugs are often greatly beneficial for patients with mental disorders. Precisely because of that fact, however, certain health-care professionals have a well-documented tendency to overprescribe drugs and disregard other, less intrusive modalities of treatment that may also be beneficial. There is a significant danger, therefore, that health-care professionals in a forensic setting may proceed immediately to medication without considering less intrusive alternatives that might be effective in restoring competence. In fact, behavioral and psychosocial therapies can be effective in treating certain aspects of psychosis, such as aggressive behavior. Although such therapies are often not adequate by themselves to treat acute psychotic disorders, they may be particularly effective even for psychosis when employed along with antipsychotic drugs. In a combined approach, moreover, lower drug doses can often be used and the course of drug therapy can often be shortened.”

APA noted that:

“(a)t present, there is no consensus among researchers that delusional disorder, persecutory type will respond favorably to antipsychotic drugs, in part because of the lack of controlled studies. If an individual with delusional disorder sought treatment voluntarily, a therapist might be justified in trying a variety of medications that have been shown to be effective with other psychotic conditions, based on the ‘natural presumption’ that those medications would be effective for other psychoses as well. But given the important autonomy interests at stake in the case of an individual who has competently refused antipsychotic drugs, a court would not be justified in indulging such a presumption without greater evidence that the individual’s specific condition will respond to the particular proposed medication.”

The APA amicus further urged that: “In light of the serious intrusion involved in compulsory administration of antipsychotic medication, more should be required than merely a showing that no less intrusive approach would be effective. In addition, the government should be required to demonstrate that a particular medication is substantially likely to be effective. If the government cannot make that showing, then administration of drugs should not be ordered.”

From the perspective of long being supportive of professional psychology obtaining prescriptive authority (RxP-), the detailed nature of, and critical reasoning behind APA’s amicus is highly refreshing. The generic-oriented “health care professional” language proffered by APA is the health care system of the 21st Century. In comparison, organized medicine’s historical “public health hazzard” allegations against our practitioners seems quite trite, as do the concerns expressed by some colleagues on psychology licensing boards which suggest that our practitioners should not even attempt to discuss medication issues with their patients or with innovative treatment facilities (such as nursing homes) that may be interested in a behavioral science perspective. The Sell holding clearly demonstrated that Supreme Court has no difficulty in listening to, and in this specific case heeding psychology’s clinical recommendations.

The Legislative Arena: Nearly three decades ago, the opportunity to serve on Capitol Hill – One of the first public policy issues that fascinated me was how the federal government might facilitate citizens who were underserved obtaining “access to quality health care.” At that time, there was a perceived shortage of health professionals of all disciplines and those in the liberal wing of the Democratic party felt that the enactment of comprehensive National Health Insurance was vital to our nation’s long term security and well being. This year, the Senate Appropriations Committee initiated a series of public hearings addressing the related issues of Health Care Access and Affordability.

Noted national columnist David Broder:

“High Cost Of Inaction On Health Care: The clearest dynamic to emerge from the opening stage of the battle for the Democratic presidential nomination is the rise of health care as the defining issue in the contest. This is hardly a surprise to those of us who have been out talking with voters. Few living room conversations proceed very far without the cost, the quality and the availability of health insurance coming to the fore. What is less understood is that a similar dynamic is operating in the business world. It is this factor that is likely to prod President Bush into joining the Democratic dialogue on the best way to expand access to health care in this country.”

Excerpts from the Senate hearings:

“Mr Chairman – Those of us fortunate enough to have health insurance know what to do if our child becomes ill or we develop symptoms of an illness: We call the doctor. But for more than 41 million uninsured Americans, the choice is not so easy. It can mean choosing between the health of your child and paying your other bills. It can mean getting lifesaving early diagnosis and treatment, or postponing care until it is too late.... Children are still going without the care they need because their parents cannot afford the costs. We still have millions of Americans of all ages who live sicker and die younger because they lack health insurance. Families are still going into crippling debt or personal bankruptcy to get the medical care they need. Who are these people? Most of the uninsured today are in working families – fully 8 out of 10 of them. Most of the uninsured either are not offered coverage through their jobs or face premiums and co-pays that are simply beyond their budget. Unfortunately, going without insurance, even for a short time, is very risky; including the deadly results of delaying medical care for serious, life-threatening problems. In a sobering report, the respected Institute of Medicine estimated last year that 18,000 Americans die each year because they lack health insurance. This report from one of our most trusted research institutes should remind all of us that this problem is a matter of life and death for too many.” [The Robert Wood Johnson Foundation].

“Mr. Chairman – I have been a Spanish and Social Studies teacher... for the past 25 years. I also serve as the chair of the Board of Directors of the Iowa State Employee’s Benefits Association (ISEBA), which is a joint effort between the Iowa Association of School Boards and the Iowa State Education Association to provide the best health insurance and other benefits at the lowest possible price for Iowa’s public school employees. The message I want to bring to you today is that health insurance costs have risen to a level where they are seriously impacting school resources – and are detrimentally affecting the quality of the education our children are receiving. To understand this, I invite you to go back to the mid-1980's. I was a young negotiator at the time. And, while we dealt with any number of issues, health insurance never came up. In fact, during my first years of negotiating we never even included the cost of health insurance in our discussions.

“That is ancient history. In the past 7 to 8 years we never begin seriously to negotiate until we know what the increase in health insurance premiums will be. In other words, the cost of health insurance is now controlling negotiations. It’s not hard to understand why. Last year the teachers... effectively took no increase in salary so they could pay for a 19% increase in insurance premiums. This year the rate increase was 35.5%. Just two years ago, family health insurance cost my district just over $5000 per year per teacher. Next year, that insurance will cost my district over $10,000.... Rising health care costs is the single most important factor jeopardizing the ability of school districts to maintain quality educational programs.”

“Mr. Chairman – The Coalition is a non-partisan alliance of more than 100 organizations working together for public policy changes to assure affordable, high-quality health care for all Americans. The Coalition’s members include major businesses, national unions, pension funds, state health benefit plans, associations of health care providers, organizations representing the major religious faiths, and consumer groups.... Together, these organizations employ or represent more than 100 million Americans. Exelon and the Coalition believe that the current rate of health care cost increase in this country is not financially sustainable.... The total cost of medical benefits sponsored by Exelon in 2001 was nearly $180 million. The equivalent figure for 2002 was $215 million, an increase of $35 million, or 19.4 percent, in just one year.... Our latest cost information, for the first quarter of 2003, shows Exelon’s medical expenses are continuing to trend upward at 19.6 percent year over year. In late July 2002 we predicted that Exelon’s medical costs for 2003 would be 20 percent higher than in 2002. So far, it appears that that prediction was all too accurate.... Health care cost inflation is a national problem, beyond the capacity of any single company – even a large firm with substantial purchasing power – to overcome. We need a comprehensive public policy solution to this crisis. This will require a significant bipartisan effort by all stakeholders.”

“Mr. Chairman – Since becoming President of the United Steelworkers of America in 2001, I have made health care a top priority for the union, because the rising cost of health care has contributed to the precipitous decline in the American manufacturing sector. Since January 2001, the American economy has lost 2.7 million private sector jobs, including more than 2 million manufacturing jobs.... The U.S. is the only industrialized nation in the world that does not have some form of state-subsidized or national health care. To put it another way, America is the only industrialized nation on earth that places the overwhelming burden of health care costs squarely on firms and their workers. By embracing a different social and economic paradigm than the rest of the industrialized world, the U.S. has created an artificial comparative advantage for foreign corporations that sell goods in the U.S. market.... The recent trends in the American health care system are disturbing and are wreaking havoc on American manufacturers and their workers.”

Clearly, there are no easy solutions. Without question, the health care environment of the 21st Century shall be a challenging one. Professional psychology must become part of the solution. As we suggested in our last column, Quality truly makes a difference. Aloha.

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