might suffice to protect others from violence. Outside
the prison context, however, involuntary medication
will need to be justified as necessary to accomplish
one or more compelling governmental interests.Governmental Interests That May
Justify Forcible Medication
What are the interests that count as compelling? As
previously noted, the state’s interest in restoring an
incompetent criminal defendant to competency so that
he or she may stand trial will count as a sufficiently
compelling governmental interest. Other state inter-
ests that will be deemed sufficiently compelling to
outweigh the individual’s assertion of the right to
refuse treatment will include the police power interest
in the protection of others from harm. When mental
illness renders an individual in an institution danger-
ous to self or others, including other patients or insti-
tutional staff, the government interest in preventing
serious harm that is imminent will be deemed suffi-
ciently important to outweigh the individual’s interest
in avoiding unwanted medication, at least when other
standards of strict scrutiny are satisfied. The state’s
parens patriae interest in the well-being of individuals
rendered incompetent by their mental illness to make
treatment decisions for themselves also will meet the
compelling interest test. When the individual has been
determined to be incompetent to make such decisions,
involuntary medication may be authorized if it is in
the patient’s best medical interests and no less restric-
tive alternative treatments are medically indicated.
State statutes or administrative rules frequently
authorize treatment in these circumstances for those
who have been civilly committed or who accept volun-
tary admission to a hospital. An increasing number of
states now authorize court-ordered involuntary treat-
ment on police power or parens patriae grounds under
statutes allowing outpatient commitment or condi-
tional release from hospitalization. Similarly, state
statutes or administrative rules will authorize involun-
tary medication in such circumstances for those suffer-
ing from mental illness in jails and prisons.Medical Appropriateness and Least-
Restrictive Alternative Requirements
for Involuntary Treatment
Even when these compelling interests are present,
involuntary treatment must be medically appropriateand the least-restrictive means to achieve compelling
state interests. The medical appropriateness require-
ment will necessitate a finding that the medication in
question and the dosage sought to be imposed are
clinically indicated for the individual. For purposes of
applying the least-restrictive alternative test, the bur-
den of establishing the futility of less restrictive treat-
ments or their lack of success will be placed on the
state. Treatments less restrictive than psychotropic
medication, such as verbal, behavioral, or cognitive
behavioral treatment, therefore should be attempted
before medication is sought to be imposed, unless
they are deemed to be unlikely to succeed in the cir-
cumstances. In addition, if the individual can show
that an alternative medication that is less intrusive
would suffice, or even a lower dosage of the medica-
tion sought to be imposed, then these less restrictive
alternatives should be attempted. If alternatives other
than treatment are available that would fully satisfy
the governmental interest in involuntary treatment,
such treatment may be impermissible. For example, in
the case of the government’s police power interest in
protecting other patients or institutional staff from the
violent acts of a mentally ill individual who is institu-
tionalized, alternative means of containing the danger,
such as seclusion and restraint, may be more prefer-
able to the patient than medication and therefore
should be used instead.The Right to a Hearing
Even when involuntary medication is constitutionally
permissible, procedural due process will require
notice and a fair hearing before treatment may be
imposed. Some states require a formal, adversarial
judicial hearing, but most courts have accepted the
constitutionality of permitting informal and nonadver-
sarial administrative hearings. Procedural due process
also will require periodic review of the need for con-
tinued medication. Even though it may be overwhelm-
ingly likely that the outcome of such hearings will
result in approving the need for medication or contin-
ued medication, the hearing can have important value
in educating the patient concerning why medication is
needed and providing him or her with a form of
participation in the decision-making process that
provides the patient with a voice and a sense of
validation. When these participatory or dignitary
values of procedure are accorded, the patient may
be more accepting of the decision to impose medica-
tion and more compliant with it. The attitudes thatForcible Medication——— 327F-Cutler (Encyc)-45463.qxd 11/18/2007 12:42 PM Page 327