There is a glitch that commonly occurs when persons are committed as incompetent under Tex. Crim. Proc. 46B.073. Bed days are being used up and lengths of stay extended because the person subject to a 46B.073 commitment is refusing medication. Often this matter goes to a Wilbarger County civil court for a hearing and not the originating court. (This is unofficial information from a state facility and should be regarded as unofficial)

Art 46B.073 states that a person is committed for treatment but under the Health & Safety Code 574.103 the patient has the right to refuse medication (which the rules of DHS/MHMR also provide in 25 TAC 414.101ff) and a 574.106 hearing is required (all of this tracks the rules in Sell v. United States, 123 S.Ct. 2174 (2003)). But Art. 46B.086 permits the criminal court to order psychoactive medication after the facility has developed a continuity of care plan which requires psychoactive medication.

In short, I am wondering about revising 46B commitment orders at the outset and commonly including orders for psychoactive medication under 46B.086 when the person is committed under .073. That is, including language which otherwise tracks the conditions, but is conditional in nature: If the facility develops a plan requiring psychoactive medication, and if the patient refuses medication, and if the necessity for administration of same is supported by two sworn affidavits by two physicians, etc. then, this court orders that said medication constituting only the least restrictive alternative for the patient to be administered only in the lowest dose so as to be reasonably effective.

Whether this pre-preparing of an order would meet appellate review I do not know, but it is worthy of being tested so as to effectuate restoration in the least amount of time and with the least amount of risk to the patient or to staff.

What say you all?

[This message was edited by Floyd L. Jennings on 11-21-06 at .]

Sounds good to me.

I don't know anything about mental health law, but I gather from your post that the Supremes have ruled that patients committed to a mental health facility cannot be forced to take psychotropic medications without a court order--is that true? Sounds pretty crazy, but you just never know what those smart people on the S.C. will dream up next.

Forced medication has its detractors. I suggest you contact Prof. Brian Shannon at Tech Law School and see what he thinks about the change. He was one of the prime movers behind 46B.

The United States Supreme Court decisions of Youngberg v. Romeo, 102 S.Ct. 2452, U.S.Pa.,1982, Mills v. Rogers, 102 S.Ct. 2442 (1982) and Rennie v. Klein, 102 S.Ct. 3506 (Mem), U.S.,1982, have generally been interpreted as holding that federal constitutional safeguards involving a person's right to refuse psychiatric medications are mostly defined by state law and that federal protection is limited to whether the treatment is "a substantial departure from accepted professional judgment, practice or standards" (the "Professional Judgment" standard).

The constitutional issues have to do with right to due process: An involuntary commitment, though a deprivation of liberty, is not a determination of the individual�s capacity such that the right to refuse psychotropic medication is reserved. In criminal commitments for restoration of competency, however, under Sell v. United States, the state may force medication if there are significant governmental issues at stake, and the medication is in the best interest of the patient, and no lesser restrictive alternative for treatment is available. The patient would have a right to a due process hearing to ascertain the conditions under which the state would have the right to substitute its judgment for that of the patient. Article 46B tracks the requirements of Sell (a person on the 46B workgroup was actually involved in the Sell evaluation). But if there is a way to honor the law yet expedite treatment, I am pushing for prosecutors across the state to do so. Whether Brian would agree with this approach, I do not know.

We have encountered this issue in Tarrant County especially since the 'clearinghouse' for state hospitals was started. I believe that some of our judges are including this language in the orders already. Our judge in charge of the deferred prosecution program is drafting legislation to provide for concurrent jurisdiction in the competency to stand trial cases.