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Prison & Involuntary Mental Health Treatment, Medicine
Those who have read or watched “One Flew Over the Cuckoo’s Nest” will certainly appreciate the horrors of involuntary mental health treatment, including involuntary administration of medication.
When each new inmate arrives at the California Department of Corrections and Rehabilitation (CDCR), that inmate will be asked to participate in the reception center psychological interview.
If the inmate refuses, mental health staff should document how they think the matter should be handled and what information has been considered. The recommendation must be reviewed by the prison’s Chief of Mental Health. CDCR, Mental Health Services Delivery System Program Guide, Ch. 2, § C.
Under CDCR regulations, a person in prison must be informed when they are diagnosed with a mental illness or receive mental health treatment. 15 C.C.R. § 3363.
Inmates generally have the right to refuse treatment or assignment to a treatment program and should not be punished for refusing treatment. However, there are exceptions to this rule. A person may be required to undergo treatment or placement in a mental health program without their consent in the following five situations:
- A mental health evaluation is required by law or ordered by a court; or
- The inmate is diagnosed with a mental illness that makes them dangerous to themself or others or makes them gravely disabled; or
- A classification committee places a person for evaluation based on a reasonable cause to believe the person has a mental illness that makes them dangerous to themself or others or makes them gravely disabled; or
- In an emergency, a licensed medical clinician places a person in segregation for observation and treatment for up to five working days pending action by a classification committee; or
- A special condition of parole is imposed that requires the person to get treatment at a parole outpatient clinic; the parolee may be required to meet with mental health staff but cannot be required to take medication without giving informed consent. 15 C.C.R. § 3363
The CDCR can force a person in prison to take psychiatric medication for a short period of time in an emergency situation without a hearing or court order.
However, people in prison otherwise have a right to have an administrative law judge (ALJ) from the California Office of Administrative Hearings (OAH) decide whether or not they can be forced to take psychiatric medications.
People in prison may be forced to take psychiatric medication against their will for up to 72 hours without approval by a judge, but only in an emergency situation in which the medication is needed to control a mental health disorder that causes the person to be a danger to themself or others or that results in a grave disability and medication is immediately necessary to preserve life or prevent serious bodily harm to the person or others. 15 C.C.R. § 3364(a); 15 C.C.R. § 3351(a) (definition of emergency); CDCR, Mental Health Services Delivery System Program Guide, Ch. 5, § G.
If the CDCR wants to force a person to take medication for more than 72 hours after an emergency, it must seek court approval. The procedures are now governed by a statute, but they are often referred to as “Keyhea” proceedings after the case that first established this right. Keyhea v. Rushen (1986) 178 Cal. App. 3d 526, 542, 223 Cal. Rptr. 746; Penal Code § 2602; 15 C.C.R. §§ 3364-3364.2; see also Washington v. Harper (1990) 494 U.S. 210, 110 S. Ct. 1028; 108 L. Ed. 2d 178 (federal due process standards for forced medication); United States v. Rivera-Guerrero (9th Cir. 2005) 426 F. 3d 1130, 1141 (person with criminal case has right to a court hearing if they are incompetent to stand trial and the government wants to force them to take medication to become competent).
Within seventy-two hours of starting the forced medication, the CDCR must send an “ex parte” request to the Office of Administrative Hearings (OAH) to continue forced medication until a full hearing is held. The request must be supported by a declaration from a psychiatrist and must show that without continued medication emergency conditions are likely to happen again. The person should be notified of the request and will be appointed a lawyer.
The person and their lawyer will have two business days to file a written opposition to continued forced medication. The ALJ will have three business days to review the request and decide whether to issue an order to allow continued forced medication. If forced medication is continued, the case must be scheduled for a full Keyhea hearing to be held within 21 days after the date the CDCR made its request to continue forced medication, unless the attorney for the person agrees to have the hearing on a later date. Penal Code § 2602(d).
This article would not be possible without the excellent treatise, California Prison and Parole Law Handbook, compiled by the Prison Law Group in Folsom, California.
