Sell v. U.S.: involuntary treatment case or catalyst for change?

The 2003 U.S. Supreme Court decision in Sell v. U.S. dealt with the involuntary administration of antipsychotic medication to an incompetent pretrial defendant. The Court’s holding set forth what has quickly become known as the “Sell criteria.” These four criteria can be paraphrased as: (1) Did the defendant commit a serious crime? (2) Is there a substantial likelihood that involuntary medication will restore the defendant’s competence and do so without causing side effects that will significantly interfere with the defendant’s ability to assist counsel? (3) Is involuntary medication the least intrusive treatment for restoration of competence? (4) Is the proposed treatment medically appropriate? None of these criteria breaks new ground as far as psychiatry is concerned. The first criterion of what constitutes a “serious” crime is solely a legal question. The third and fourth criteria were highlighted over a decade ago in Riggins v. Nevada. Only the second Sell criterion appears novel from the mental health perspective. However, the U.S. Supreme Court previously addressed the nonrestorability of competence to stand trial in Jackson v. Indiana and involuntary use of antipsychotic medications in Washington v. Harper. What is “new” for mental health purposes is how the U.S. Supreme Court combined these concepts. Clinical input may be particularly important in guiding the judicial decision maker in what constitutes a substantial likelihood of restoration. The second part of the second Sell criterion has less practical importance, since the newer generation of antipsychotic medications significantly reduce or in some instances eliminate the disturbing extrapyramidal side effects that have been the point of focus as a vehicle of potential unfairness to the defendant. Although the newer antipsychotics have been associated with potential adverse metabolic side effects in some patients, these side effects are not likely to arise during the course of the criminal case and, if they do, would not be expected to impact the defendant’s competency to proceed. Commentary and discussion immediately followed the Court’s Sell decision, including presentations at the October 2003 Annual Meeting of the American Academy of Psychiatry and the Law. Shortly thereafter, even the New England Journal of Medicine’s legal commentator jumped into the debate. As expected, additional exploration of the Sell case has followed from both the mental health and legal fields, especially from the latter. The post-Sell analysis has focused primarily, and rightfully so, on the Court’s holding or Sell criteria and its impact on the involuntary medication question. For example, California overhauled the procedures involving incompetent defendants in 2004 (see Senate Bill 1794 which amended sections 1369, 1370, and 1370.01 of the California Penal Code) and the Second and Fourth Circuit Courts of Appeals have weighed in on it in U.S. v. Gomes and U.S. v. Evans. Dr. Leong is Clinical Professor of Psychiatry and Behavioral Sciences, University of Washington School of Medicine, Seattle, WA, and Staff Psychiatrist, Center for Forensic Services, Western State Hospital, Tacoma, WA. The views expressed in this editorial are solely those of the author and do not necessarily reflect those of the University of Washington or the Washington State Department of Social and Health Services. Address correspondence to: Gregory B. Leong, MD, Center for Forensic Services, Western State Hospital, 9601 Steilacoom Boulevard, SW, Tacoma, WA 98498-7213. E-mail: [email protected]