Prisoners have a liberty interest, protected by the Fourteenth Amendment, in
not being treated against their will. The extent of this liberty interest was
defined in Washington v. Harper, [
Washington v. Harper, 110 S. Ct. 1028
(1990).] a case arising from a prisoner’s objection to being given antipsychotic
medications. The Washington prison system provided elaborate administrative
protections before an inmate could be medicated against his will. The
Washington Supreme Court rejected these administrative protections as
inadequate and required that an inmate be given a full adversarial hearing
before being treated against his will:
The [Washington Supreme] Court concluded that the “highly intrusive
nature” of treatment with antipsychotic medications warranted greater
procedural protections.… It held that, under the Due Process Clause, the
State could administer antipsychotic medication to a competent,
nonconsenting inmate only if, in a judicial hearing at which the inmate
had the full panoply of adversarial procedural protections, the State
proved by “clear, cogent, and convincing” evidence that the
administration of antipsychotic medication was both necessary and
effective for furthering a compelling state interest. [
Washington v.
Harper at 1035.]
Mr. Harper, the prisoner who brought this action, claimed that the prison
authorities could not medicate him unless he was found to be mentally
incompetent in an adversarial hearing. He further alleged that even if he was
found to be incompetent, he could be medicated only if the fact finder
determined that he would have consented to the medication had he been
competent. The U.S. Supreme Court rejected these claims, finding that the
prison’s policy was constitutionally adequate. The Court’s rationale for
endorsing the prison’s policy is relevant to the general problem of prison health
because it accepts expert decision making as a substitute for adversarial
decision making.
The Court reviewed the Washington Supreme Court’s decision to determine
what facts would support a decision to force antipsychotic medication on a
prisoner and what procedural protections were necessary to determine those
facts. It agreed that Harper had a liberty interest in not being medicated
against his will. However, the Court held that this liberty interest was
sufficiently protected by the prison’s administrative proceeding, which required
that a psychiatrist certify the treatment’s appropriateness.
The Court’s acceptance of expert decision making as a substitute for an
adversary hearing seems to be rooted in the limited autonomy granted to
prisoners. The Court found that a prisoner’s right to refuse antipsychotic
medication was limited by the conditions of his confinement. In particular, the
Court found that the purpose of the prison’s medication policy was “to
diagnose and treat convicted felons, with the desired goal being that they will
recover to the point where they can function in a normal prison environment.”
The Court in Harper balanced the prisoner’s best interests against the prison’s
interest in returning him to the general prisoner population and his punishment.
The role of the expert decision maker, the prison psychiatrist, was to ensure
that the prisoner was mentally ill and dangerous and that medication was
appropriate to remedying these conditions. The protection of the prisoner’s
interests was left to the integrity of the prison psychiatrist. The Court’s finding
that expert decision making satisfied the prisoner’s due process interests
reflects the Court’s general reticence to interfere in matters of prison safety
and security.
Prisoners retain some right to refuse medical care after
Harper, but this is
severely circumscribed as compared with the rights of a nonprisoner patient.
Prisoners may not refuse testing or treatment for a condition that would
threaten the health and safety of the prison community, these including
communicable diseases and treatable psychiatric conditions. Prisoners may
also be forced to accept treatment that is necessary to protect their health
from permanent injury. Prisoners with religious objections to medical
treatment may be treated against these objections if the treatment is
necessary to preserve prison discipline.
For prisoners in Federal Bureau of Prisons facilities, there are specific
regulations governing care provided without or against the prisoner’s informed
consent. These regulations deal with a specific judicial process for such care
involving infectious diseases or mental illness. There are also provisions for
emergency care. Although these regulations may not apply in other facilities,
they set a medical and a legal standard for handling such cases that state and
local correctional facilities would be wise to adopt or adapt to their specific
situations.
