imposed by the U.S. Constitution and its state coun-
terparts are the most significant restrictions on state
authority in this regard as they drive other legal
restrictions. This entry discusses these constitutional
limitations, the level of scrutiny the courts will apply
in weighing right to refuse medication claims, and the
standards that must be satisfied for involuntary med-
ication to be authorized. To meet these standards, the
government must show that treatment is both med-
ically appropriate and the least-restrictive alternative
means of accomplishing one or more compelling gov-
ernmental interests. The patient is entitled to a hearing
concerning the satisfaction of these criteria, typically
occurring before treatment may be imposed. In an
emergency, the hearing may take place thereafter.Constitutional Bases for the
Right to Refuse Medication
Constitutional limits on involuntary intrusive treatment
of the kind represented by the psychotropic drugs
derive from several sources. The U.S. Supreme Court
has recognized that unwanted antipsychotic medica-
tion invades a significant liberty interest protected by
the due process clauses of the Fifth and Fourteenth
Amendments. Substantive due process protects a lib-
erty interest in bodily integrity and personal security,
as well as a liberty interest in personal autonomy in
health care decision making that involuntary medica-
tion would invade. Moreover, such medication also
may invade the First Amendment’s protection of men-
tal privacy and freedom of mental processes from sig-
nificant governmental intrusion. When administered as
punishment, involuntary medication may also raise
questions of cruel and unusual punishment banned by
the Eighth Amendment. Moreover, because medica-
tion is not administered on an involuntary basis to
medically ill patients, for whom informed consent
would be required, but is for those with mental illness,
an equal protection question may be raised. In more
limited circumstances, when refusal of medication is
based on religious objection, forced medication may
infringe the First Amendment’s protection of the free
exercise of religion.
The level of constitutional scrutiny of governmen-
tal attempts to impose involuntary treatment will vary
with the intrusiveness of the treatment in question.
Traditional antipsychotic drugs can induce a variety
of Parkinson-like effects that are distressing and sev-
eral serious and permanent effects such as tardive
dyskinesia. Even the newer atypical antipsychoticdrugs impose serious risks, including diabetes and
perhaps stroke. Although drugs used in the treatment
of depression and bipolar disorder may raise fewer
constitutional difficulties, their impact on mood and
mental processes remains sufficiently significant to
require some degree of heightened judicial scrutiny.
Almost all these drugs intrude directly and powerfully
into mental processes, bodily integrity, and individual
autonomy and therefore would seem justified only on
a showing of compelling necessity.Constitutional Requirements
for Forcible Medication
The Supreme Court’s decisions in Sell v. United States
(2003) and Riggins v. Nevada (1992), both involving
criminal defendants seeking to refuse antipsychotic
medication, seem to suggest a form of strict scrutiny. To
justify the administration of antipsychotic medication,
the Court required a finding that the involuntary med-
ication was medically appropriate and the least intru-
sive means of accomplishing one or more compelling
governmental interests. The government’s interest in
restoring criminal defendants to competence to stand
trial and maintaining them in a competent state so that
they may be tried will meet this test as long as the med-
ication in question is clinically appropriate for the indi-
vidual, no less intrusive treatments or medications will
achieve this goal, and medication will not significantly
impair the defendants’ trial performance. When a crim-
inal defendant seeks to refuse medication that the gov-
ernment contends is required to restore or maintain his
or her competency, the criminal court will need to hold
a hearing on whether these standards are satisfied and
to make specific factual findings concerning them
before medication may be imposed.
This strict scrutiny approach would seem generally
applicable to the administration of unwanted, intru-
sive medication in hospital and community settings
and even in jails that house pretrial detainees. A more
relaxed standard will apply to sentenced prisoners,
however. In Washington v. Harper(1990), the Supreme
Court applied a reduced form of constitutional
scrutiny to uphold the involuntary administration of
antipsychotic medication in a prison hospital for an
inmate who was found to be dangerous to other pris-
oners and staff. In prison contexts, as long as the med-
ication is medically appropriate and reasonably
related to the need to protect others from harm and to
protect prison security, it may be imposed even if less
restrictive alternatives, such as solitary confinement,326 ———Forcible MedicationF-Cutler (Encyc)-45463.qxd 11/18/2007 12:42 PM Page 326