Khiem v. United States

WAGNER, Before SCHWELB and GALLAGHER, Judges, Associate Judge. Senior SCHWELB, Judge: Associate (Khiem) Appellant Tran Van was charged premeditated in 1986 mur- with parents. incompe- der of his He was found presently tent to stand and is detained (the Hospital hospital). Saint Elizabeths He appeals now from an order of the trial treated, directing that he be over his objection, psychotropic drugs. The with primary purpose of the treatment competent would be to render Khiem stand trial.

Khiem contends that the administration drugs of these to him without his consent abrogate right his common law statutory bodily integrity, as well as his rights under the Health Decisions Act Care competent Following sev- (HCDA), 21-2201 et was waive it. D.C.Code § stan- seq. (1989). He claims that the eral examinations communications also hospi- court, procedures hospital reported utilized that Khiem dards and ordering treat- trial and that he tal and the trial to stand insanity run Due Process Clause for an defense. qualify ment afoul did not 8, the We hold that of the Fifth Amendment. rescheduled for March The trial was trial made accommoda- a reasonable date. began 1988 and that and liberty tion between Khiem proceeded, As the conducted trial bringing him the At manner.2 the re- himself in a bizarre trial, inapplicable, and to the is that HCDA counsel, Judge Ugast halt- quest defense below satisfied procedures that the utilized proceedings a compe- and ordered ed Ac- applicable standards. constitutional 18, 1988, tency screening. On March after cordingly, affirm. hearing testimony examining psy- from the chiatrist, judge incompe- found Khiem I judge declared a tent to stand trial. hospi- him to the mistrial3 and recommitted THE TRIAL COURT PROCEEDINGS (1989) 24-301(a) pursuant to D.C.Code tal § 1986, July 24, morning of On the The purpose treatment. for evaluation and Mrs. Chuong of Mr. Tran Van and bodies Khiem to the commitment was to enable elderly Chuong, couple Nam Tran an who regain competency. his trial prominent were members Vietnamese 13, 1988, hospital reported June On in their in north- family,1 were found home to trial Khiem was stand that dis- Washington, Investigation west D.C. regain unlikely that to his he was Chuongs that both had died closed in the foreseeable future. competency apparently and that each had asphyxiation diagnosis repeated on several oc- This was July severely beaten. On been years following two casions over Khiem, son, appellant then their Tran Van by the court. convened proceedings sixty age, was arrested years surety A bond charged with the murders. Khiem psychiatrist A who had examined $100,000 post imposed. to was Unable suggested at a prosecution on behalf of the amount, at the Khiem was detained anti-psychotic medication hearing that An indictment District of Columbia Jail. potential improving for could have some charging April was returned restoring compe- his Khiem’s condition of murder Khiem with two counts Shuker, Judge to tency for Robert trial. initially was sched- degree. first His trial reassigned, had been direct- case whom July uled for explore possibility. hospital ed the court, however, by hospital advised the preliminary The following On June 18, 1989, it had September Khiem letter dated proceedings which indicated psychotropic medication insanity decided that propose to offer an he did not Khiem on an should not be administered defense, Judge Ugast Fred ordered Chief Dr. It view of involuntary hospital basis. was be transferred that Khiem Medical Director of Kelley, the his mental condition. John examination of an Pavilion, Khiem un- was Howard hospital determine John He directed such medi- positively to likely respond competent to stand Khiem whether was prognosis, his with or with- trial, insanity might be cation and an defense whether medication, poor. so, and, Khiem out him whether available to person Ngo an while he daughters, accused Chuongs’ 3.The conviction Madame 1. One of the Nhu, presi- legally incompetent deprives him of his liber- of the last Dinh sister-in-law is ty process dent of South Vietnam. Pate v. due of law. Robin- 836, 838, 375, 378, son, reported paranoid to suffer from L.Ed.2d 815 conspiracies related about world-wide delusions parents. his to him and 4, 1989, medicine, prosecution practiced On October filed those who forensic require might involuntary agree hospital’s motion to with the decision. [Khiem’s] responded medication. The defense awith hospital’s ruled that the rec motion to terminate Khiem’s commitment. ommendation “has been shown to be whol September Judge On Robert M. ly upon reasonable and to have been based Scott, to whom the case had been reas- clinical determinations are well signed, provide directed the found, medically.” specifically founded He updated report. claims, contrary hospi to Khiem’s order, response judge’s tal’s treatment decision had not influ been per hospital reported that Khiem in- enced a desire to accommodate the remained competent. Following prosecu ceived wishes of the court or the an evaluation doctor, judge M.D., rejected, strength tion. The on the Rogers, new Kenneth how- ever, 210, Washington Harper, of v. 494 hospital U.S. now recommended that 1028, (1990) 108 L.Ed.2d 178 Khiem psychotropic drugs. be treated with Charters, United States v. 863 F.2d 302 hospital The psychotropic indicated that (4th Cir.1988) (en banc), denied, cert. symptoms could reduce the L.Ed.2d 493 (including Khiem’s illness psychotic (1990), Khiem’s contention that the court thinking) and competent render him authority was without to order treatment trial. hospital’s Khiem invoked the inter- it, unless Khiem per consented to either nal procedures administrative review in an sonally through judg or the substituted attempt to have this recommendation set process. judge ment The authorized the aside. appeal His administrative was un- hospital to administer medi and, 19, 1991, successful on March Dr. sixty-day period, cation to Khiem for a but Rogers’ hospi- decision was affirmed ordered that the be monitored for Khiem, tal through administration. coun- unfavorable side effects and that the treat sel, asked the trial court not to follow ment necessary be discontinued if this was hospital’s recommendation. well-being. to assure Khiem’s judge hearings trial convened two to was progress report directed to make a to determine pro- how Khiem’s case should seventy-five days the court within of the 11, 1991, April ceed. On considering after appeal commencement of medication. This arguments counsel, the briefs and followed. question concluded that the for his consid- eration was hospital’s whether the recom- II arbitrary capricious.

mendation was or Thereafter, evidentiary hearing at an SUBSTANTIVE LEGAL ISSUES—THE

began July judge received COMPETING INTERESTS testimony of one medical witness called on behalf of Khiem and of three medical A. In re A.C. Rogers, Kelley, witnesses—Dr. Dr. and Dr. Livingood4 prosecu-

John Relying primarily on this court’s —called tion. The witnesses testified A.C., reference in 573 A.2d In re involuntary treatment (D.C.1990) (en banc), to “the tenet medically was indicated appropri- and that common to medical treatment cases: all5 safeguards ate would be taken to avert right any person has the to make an possible psychiatrist choice, so, side-effects. The competent do informed to to disagreed hospi- treatment,” called Khiem accept forego recommendation, acknowledged judge’s tal’s but order Khiem contends trial minority right psychiatrists, especially unlawfully that a overrode his common law Livingood emphasis 4. Dr. was added in had reviewed the treatment rec- 5. The to the word all request hospital’s ommendation at of the Khiem's brief. chief clinical officer. bodily integrity.6 “every,” He claims that before A.2d at id. 1247. We medication, authorizing psychotropic recently reiterated States v. Al- United required judge trial a determi- (D.C.1990), was make ston, 580 A.2d n. competent nation whether Khiem was argument predicated this type decide such medication should be whether misconception of nature and uses Khiem main- administered him. further precedent, judicial and therefore makes far judge tains that if the found him not too too much out of little: competent decision, to make then (D.C. Kraft, 155 A.2d 910 Kraft obliged apply the principle that; 1959), pointed out the court judgment what substituted ascertain signifi- It is to remember that well have if he had Khiem’s wishes would been given general cance is to broad A.C., been to decide. su- See only by compar- statements law 1249-51; pra, Boyd, 573 A.2d re ing they arise the facts from which (D.C.1979). Extracting A.2d 750-52 they suppos- facts to which with those context,7 evidently its A.C. from edly apply. that in of our decision light maintains case, are judges now also Armour & 155 A.2d at 913. See law, authority, Wantock, 132-33, as a of local common matter Co. pa- any a to order medical treatment over (1944), 165, 168, L.Ed. 118 where S.Ct. 89 is objection objection, tient’s whether Supreme aptly the Court stated: indi- interposed directly patient the or by again timely It is to remind counsel rectly through judgment the substituted opinions of our are to be words Khiem, rule, according is process. This to light the read in the of facts of the insists, absolute; C., “rec- the court in A. he keep opin- To order under discussion. protected by ognized no limits on who pre- ions within reasonable bounds principle.” decision this common law Our writing every them limi- cludes into it, A.C., effec- interprets as Khiem might which be or variation tation tively in his a criminal defendant enable suggested by circumstances the of position unilaterally whether to determine General cases the Court. not before may brought trial. be to We discern to facts expressions transposed other nothing such a support in A.C. which would misleading. are often doctrine. one-sided added.) (Emphasis approach Khiem’s vitali- bold derives C., noted A. su- specifically This ty which it from the court’s use have 1245-46, right to “all,” opinion of the words 573 573 A.2d at pra, A.C. statement, questions not raised consider 6. Khiem also cites the court’s later in us to would lead "every person Engineering opinion, Corp. has the v. by parties. the A.C. See General the right, Auth., law and Constitu- under the common Virgin 805 Water & Power Islands tion, treatment,” accept or id. to refuse 88, Cir.1986). (3rd n. 92 5 has, however, elected to cast his at 1247. He (as distinguished argument his substantive from A.C., had authorized procedural process due contentions discussed in patient’s fetus Caesare- deliver to IV, exclusively infra) Part in common law ascertaining through the first an section without constitutional) (rather than terms. In its ami- pa- judgment mechanism what substituted reversal, urging cus American Civil brief re- been. This court would have wishes tient’s Capital of National Liberties Union Area A.C., namely, question whether versed. (ACLU) goes contends the trial further and saving the prospects life of of uncertain drugs psychotropic order that admin- court’s compelling un- fetus warranted the Due Process istered to contravened consent, surgery major her dergo Clause of the Fifth Amendment. here, obviously quite different from issue disposed the issues We are not to broaden is whether which beyond in Khiem's behalf those raised alleged involving bringing trial a case two from the Public Defender Service. able counsel right outweigh murders is sufficient Goldstein, 725, (D.C. A.2d 726 See Givens v. 52 closely monitored administration to refuse the Mitchell, 1947); v. United Parcel Serv. 451 cf. him, comparatively period, of short a over 1559, 2, 56, 2, 67 101 1562-63 n. U.S. 60 n. S.Ct. drugs. present This case does not L.Ed.2d 732 "exceptional of the kind circumstances"

165 accept reject Court, through speaking medical treatment is not Chief Justice view, recently We our discus ini- Rehnquist, absolute. commented that reiterated its pa sion a tially ago, circumstances in which more century articulated than a overridden, wishes even in tient’s us, before the context of the case then sacred, held right is more or is more [n]o invasion,” “major a presupposed bodily law, carefully guarded, by the common explicitly declined to draw the line be right every to the than the individual major surgery. and minor tween Id. at possession person, and control of his own unnecessary n. 10. We found it 1246 & free all restraint or from interference decide, C., supra, see A. 573 at 1246 & A.2d others, unquestiona- clear unless 11, States, Hughes n. whether v. United authority ble of law. (D.C.1981) 429 A.2d 1339 and United Health, Dep’t Missouri 497 Cruzan v. Crowder, 165, States 177 U.S.App.D.C. -, 2846, 2841, 110 111 U.S. S.Ct. (1976), denied, 543 F.2d 429 U.S. cert. (1990) (quoting R. L.Ed.2d 224 Union Pac. (1977), S.Ct. L.Ed.2d 250, 251, Botsford, Co. v. upholding surgi both minor reasonable (1891)); 35 L.Ed. 734 see also cal intrusions under the skin remove v. Society New Hos York Schloendorff suspects, bullets criminal would be 125, 129-30, 105 pital, 211 N.Y. N.E. differently light decided Winston (1914) J.). (Cardozo, right That embraces Lee, “significant liberty avoiding the interest in (1985), L.Ed.2d 662 in which the administration of antipsychotic unwanted rejected government’s request drugs,” Harper, supra, 494 U.S. at recover bullet from a defendant’s chest injec S.Ct. at 1036 forcible “[t]he

by major surgery requiring general anes nonconsenting per tion of medication into a Our thetic. discussion in the A. C. represents body son’s inter substantial necessarily of those cases recognized that person’s liberty.” ference with that Id. at enforcement might impli law interests be 229, 1041; accord, at Riggins 110 S.Ct. v. cases, in other cated but we refrained — 1810, Nevada, U.S.-,-, 112 S.Ct. questions the mer unrelated to 1815, 118 L.Ed.2d 479 its case of the before us. court thus This agree his We also with Khiem that open left explicitly very in A.C. the kinds of rights the common under law were issues which Khiem now claims be fore extinguished by his commitment to the law by closed that decision. custody hospital. Harper, ful of the about, decide, A. was not C. and could not supra, recognized mental that a weight how much given should be ly ill who has individual been sentenced judge’s calculus to the inter- imprisonment right, retains a both under bringing est in to trial an accused who has state under the Process law and Due premeditated indicted for been murder. Amendment, to Clause of the Fourteenth opportuni- The United States never had the arbitrary be free from administration ty present in A.C. to that law enforcement 221, 110 antipsychotic of medication. at Id. for the court’s consideration. A.C. 403 Boyd, supra, S.Ct. at 1036. See also converted, inge- not be barristerial judg (ordering A.2d at 750-52 substituted judicial sweeping nuity alchemy, into a in inquiry civilly ment where committed rejection of neither contentions which were objec religious individual raised the court nor the issues before relevant to of tion to administration give then at hand. We therefore cannot drugs). significance present for the con- A.C. troversy which Khiem attributes to it. recognition important of as- But our pect autonomy in a free socie- of individual Integrity. B. Interest in Bodily Khiem’s us to.accord it the ty does not lead absolute Khiem C., preemptive character which indicated in law As we A. the common in- government bodily integri- cannot liberty interest in one’s claims for it. own bodily integrity with- important upon trude ty is an one. The 166 right law defen- overriding justification common showing

out [committed su- appropriateness. Riggins, and medical to refuse treatment.” He claims dants] at-, pra, 112 at 1815. S.Ct. re- provision, under that courts that made, showing has how- Once such been decisions view treatment ever, due enjoys Khiem common law or made only to “make sure it has process protection from an unreason- reasonable decision in view permissible and invol- arbitrary able or determination information and within a of the relevant See untary appropriate. Tribby range See v. discretion.” broad supra, 221, Harper, at 110 494 U.S. Cameron, U.S.App.D.C. 1036; Charters, supra, F.2d at 305. at 104, (1967). Khiem responds Prosser remarked in a different Dean has derogation the common law a statute related context that ‘medical but with “[a]s construed, com- strictly be and that must sover- paternalism/ the notion remain in unless rights mon law effect Page eignty can be carried too far.” W. expressly repealed or modified. See Unit- Keeton, Keeton the Law of PROSSer and Jackson, ed States A.2d (5th 1984). n. 60 ed. at 190 Torts, § States, (D.C.1987); O’Connor United interest, like his due Khiem’s common law view, (D.C.1979). A.2d In our protections, weighed must process however, Khiem provides law common against legitimate interests asserted those essentially rights the same state, supra, at Harper, in Tribby, but no recognized by the a reasoned 24-301(a), as con- heretofore more. Section must be accommodation made between strued, derogation is thus Id. competing interests. 110 S.Ct. common law. at 1044.8 Moreover, having lawfully been Khiem contends that Finally, hospital, of his committed the extent required prove its prosecution is rights must be assessed the context objec medicating him his over Id. confinement. compelling so no reasonable tion is 1037; Charters, supra, 863 F.2d at 305. availability of rea exists. alternative com- The statute under Khiem was treat alternatives to sonable mitted, (1989), 24-301(a) pro- D.C.Code § ment, shown, relevant factor appar- commit an vides does not inquiry, in the but overall to a ently criminal defendant government necessarily mean that for “care and treatment” mental every up “set and then shoot down must regain competen- order to enable him to his of accom conceivable alternative method Overholser, 104 cy. See Williams modating constitutional the claimant’s [or 175, 18, 20, 177 U.S.App.D.C. 259 F.2d supra, Harper, complaint.” common law] surely incongruous, It would (quoting 225, at 1038 494 U.S. at 110 S.Ct. court, 24-301(a), to hold light of § 90-91, 107 Safley, Turner v. committing an accused for treatment after (1987)). In 2254, 2262, L.Ed.2d 64 S.Ct. 96 competent so that he can to render him below, law en event, show as we he trial for the offenses with which stand govern by the asserted forcement obliged charged, been is to withhold has case, which involves present ment option. at the accused’s sole treatment com murders, especially an alleged two — supra, U.S. at Riggins, Corporation pelling Counsel contends one. 24-301(a) -, abrogates any 112 in his brief that S.Ct. § makes a if the factfinder explicitly rejected petent, and Harper, a con- then In the Court he, competent, by mentally prisoner judgment ill stitutional contention substituted drug common law claim here: dis- identical We treatment. consent State, Respondent under agree. contends that the Clause, may (emphasis Due Process the mandate of the S.Ct. antipsychotic to refuse added). not override his choice drugs been found to be incom- unless he has Bring- considerably greater C. Government’s Interest presented than that

ing Khiem to Trial. government recovery in the bullet cases. As the Court noted in Having liberty assessed Khiem’s in — at-, Riggins, supra, U.S. terest, competing we turn now the inter quoting after the Allen concur- est asserted the United States. As Jus emphasize government’s rence to that the concurring opin tice Brennan wrote in his Allen, 337, 347, opportunity bring ion in Illinois v. accused to U.S. 1057, 1063, (1970), 25 L.Ed.2d 353 fundamental to a scheme of ordered liber- ty, might “the State have been able to safeguards that the Constitution ac [t]he presuppose justify medically appropriate, involuntary cords to criminal defendants government sovereign prerog has a drug by establishing treatment with put ative to on trial those accused that it adjudication could not obtain an good violating faith of valid laws. Con Riggins’ guilt or using innocence less power stitutional bring an accused to intrusive means.” trial is fundamental to a scheme of ‘or argues The ACLU in its amicus brief liberty’ dered prerequisite and to social government’s “largely interest is justice peace.[9] symbolic,” because even if Khiem is con- Accord, Riggins, supra, at-, victed, “he will all likelihood return in quoting Allen in the short order to some form of institutional context involuntary of an medication issue psychiatric agree care.” We cannot case; Law, raised in a murder State v. the ACLU’s characterization. We note (1978) S.C. 244 S.E.2d that Khiem has asked the court to termi- (same). community’s interest “[T]he nate his emphati- commitment and that he fairly accurately determining guilt or cally danger denies that he is a to himself great innocence ... is of course impor- anyone or to else. An individual Winston, tance.” supra, 470 U.S. at civilly committed unless it is demon- 105 S.Ct. at 1617-18. Since it has been strated likely injure that he is himself or impossible for years bring several (1989); others. See D.C.Code 21-521 § Khiem to trial to guilt determine his Melton, (D.C.1991) re 597 A.2d 896-97 innocence without first administering psy- (en banc). Accordingly, if all of the decla- medication, chotropic in- rations on Khiem’s behalf were taken at terest is a “fundamental” one very and of a value, face legal and if his contentions high order indeed. prevail, might were to soon abe free Winston, impor- the Court treated as guilt man without his or innocence of two (though tant controlling) govern- having established, murders first been obtaining ment’s interest in a bullet from a indefinitely this could continue unless he suspect's criminal chest. That bullet regained competency to stand trial. would, however, represented have but one cases, Unless we view the trial of homicide part against of the evidence the defendant. crime, punishment the deterrence and Id., 765, 470 U.S. at 105 S.Ct. at In 1619.10 incapacitation insig- and the of criminals as case, present the appears beyond it to be nificant, government’s the law enforcement dispute that if Khiem is not treated with medication, determining interest Khiem psychotropic whether prosecution bring parents will not be able to him murdered his is far more than to trial at all. merely symbolic. The societal interest at issue is therefore Hughes, supra, 9. Justice Brennan added that if a resolution of 10. In 429 A.2d at 1339-40 and in 166; Crowder, supra, U.S.App.D.C. charges judicial 177 543 by criminal "cannot be reached 313, hand, operations law, F.2d at on the other were trial in a court of it will be reached else- recovering purpose authorized for the lodged bullets means, where and other and there will be defendant, beneath the skin of each grave danger liberty, equality, that and the or- noting required in each case that the sur- court der essential to both will be lost.” 397 minor, gery sought evidence would be while the 348, 90 proba- to be recovered would be of substantial tive value. 168 in- Competing

D. When Interests Collide: institutionalization” which Charters’ yield. terest must Id. at 305-06.11 Medi- Involuntary Administration of cation to Restore a Com- Law, supra, Defendant’s State v. petency. rejected Court of Carolina a conten- South tion very similar to that made appear Although the issue does not here: squarely juris have been decided in this appellant apparently Counsel for diction, most of the courts which have been position that takes under no circum- involuntary upheld the asked to do so have can medication stances be administered a re psychotropic drugs to administration of his They defendant without consent. competency a defendant’s store maintain that such would contend be violative of for trial. bodily integrity. We do not feel that right such It is our an absolute exists. holding hospital may treat may adminis- view that medication be Khiem with medication without his such tered without the consent of a defendant consent, judge relied only the trial not circumstances, compelling under includ- Harper but also on Charters. In Char- ing is neces- those where medication ters, the Appeals United States Court of competent sary to render a defendant Circuit, sitting banc, for the Fourth en af- to stand trial. authorizing firmed a order trial court 674, (emphasis 244 270 S.E.2d at 307 S.C. involuntary psychotropic treatment with added).12 Accord, State, 103 Ybarra v. mentally medication of ill defendant who (1987) (“the Nev. P.2d 356 allegedly threatening had been for indicted considered the majority of courts have the President of the United States. Char- competency issue held that have ters had been com- found through [involuntary] attained use prison to a health facility mitted mental medication”); Lover, 41 v. Wash. State psychiatric examination and treatment. (1985) App. 685, 689, P.2d although The court held individual adminis (psychotropic medication thereby stripped so committed was tered the consent of a defendant without interests, of his liberty all those interests trial) competent render him or her to stand protection retained afforded were (citing Law, supra, S.C. at against capricious arbitrary and state 307); N.H. Hayes, S.E.2d at State action, adequately secured were (1978) (“the trial 389 A.2d professional judgment exercise to be un may compel court the defendant personnel. prison facility’s prior to der at least four weeks medication recognized 304-05. The court [appropriately] instructed jury trial if the maintaining ”); Hardesty, 139 People ... see also pretrial detainee in a condition Mich.App. 362 N.W.2d (1985).13 “legitimate to stand trial incident of Law, 11.Although had been have focused in this 12. In trial, restoring prior the law enforcement to the defendant administered competence, part, there was evidence objection also and he apparently on his support which would before finding challenge convic- until after did raise his legitimate however, his order served other text, tion. As reflected purposes. Kelley testified Khiem’s con- Dr. present- ultimately here reached the issue deteriorated, had that his were dition delusions ed. (Dr. expanding, Kelley) con- and that he was that, treatment, psychotropic cerned Hardesty, in stated 13. As the court (who already allegedly killed his Khiem had [tjhe bringing in substantial interest state’s might against parents) See strike out others. good and on accused in faith trial defendants 223-26, Harper, supra, 494 U.S. at 110 S.Ct. at violating probable inter- cause of its laws—an Livingood the was of that 1037-39. Dr. sys- integrity justice of its est criminal appropriate medication "because the was now police very at the core of its tem and therefore power psychotic does disorder and the man have a seemingly suffi- be counted as help psychotic a chance to the treatment offers —would outweigh defen- healthy.” ciently compelling to the help and become more disorder him which, avoiding 1038. interest in medication See id. at 110 S.Ct. at dant’s Greaves, Khiem III relies on Bee v. Cir.1984) (10th proposition for the THE HEALTH CARE DECISIONS ACT bodily integrity trumps

his interest in all competing court state interests. As the the Khiem’s contention Bee, explained in court’s order contravenes the HCDA need jail long. contends that it was entitled to not us That has no detain statute in

inject forcibly Bee with or- bearing present thorazine on the case. competent der keep him for trial. As begins following HCDA The with initially, however, we noted the state statement: hearing Daniel found after “that purpose chapter of this is to affirm mentally compe- H. ill Bee is not and is right competent of all adults to con- Rec., I, tent to stand trial.” at 132 vol. relating trol decisions to their own health added). (emphasis Given this determina- rights care and to have their and inten- tion, asserted in state’s interest respected tions in health care matters keeping Bee trial is stand implemented by they and others be- case; in implicated not therefore it incapable making or communi- come cannot serve to override Bee’s interest in cating decisions for themselves. avoiding forcible medication anti- 21-2201(a) (1989). It D.C.Code creates a § psychotic drugs. 21-2203, capacity, presumption of id. and § (emphasis original Id. at 1395 in as to alia, provides, inter for certification of in- competent, words is added remain- as to 21-2204; capacity, powers id. for durable § der). The issue raised here Khiem was 21-2205; attorney care, for id. health § thus not the court in before See.14 and for the mechanics of substituted con- relies on Boyd, supra, also sent, 21-2210. id. The recitation these § applied which this court the “substituted provisions itself discloses that the HCDA judgment” principle pa- designed address situations which tient civilly who had been committed and doctors, members, family courts objected religious grounds who to the may required to make treatment deci- administration of sions who has unable for become however, allegation, to her. There was no such matters himself or her- to decide for Boyd that Ms. had committed serious self. crimes and it necessary bring that was That this was the Council’s concern be-

her governmental to trial. The apparent comes from an examination of the controlling we find here was legislative history. “background Act’s presented Boyd case. legislation were and need” de- scribed as follows: persuaded by reasoning

We are Charters, Law, regarding and other autho- The law decisions about decisions general rizing psychotropic life-sustaining treatment without treatment decision-making is not clear accused’s consent cases such as this. health-care Many Accordingly, reject application. in its Khiem’s common or uniform held to protracted proceedings claim. deter- law intrusive, trial, brought outweigh although highly generally might could ever will (Footnotes bodily integrity. omit- result in irreversible effects. individual’s ted.) Winick, Psychotropic Medication at 1395. the merits of such 744 F.2d Whatever Trial, Competence to Stand American speculation time Bee was have been at the Bar Foundation Research Journal 812- decided, issue is now foreclosed Harper, Supreme Court’s decision in (internal quotation marks 362 N.W.2d at 793 222-23, which the Court omitted). rejected explicitly contention properly patient's be considered. questioning interest could in Bee whether There is dictum at-, Accord, being Riggins, supra, state interest unrelated to the well "[a] the individual or those around him," such at 1815. rendering competent interest in him so he 170 legal propriety Riggs opinion,

mine the of decisions to in the we reiterated that “it life-sustaining have forgo treatment of mature is one the surest indexes of a publicity, been attended considerable developed jurisprudence and not to make ” already compounding tragic situations dictionary. out the Id. fortress of Further, ap- it for families involved. Markham, (quoting 123516 148 Cabell pears get to court if that often cases (2d Cir.) added), (emphasis 739 if the disagreement, there is tremendous 90 L.Ed. aff'd liability, physicians are concerned about Khiem’s contention that the if the and/or family’s physician’s or and here can presented issue be resolved hospital's analysis moral differ. resort to the use of the word Council’s Judiciary Report of the Committee on the “all” exalts literalism to un out-of-context the of Columbia 2 Council of District pre-eminence. preemptive deserved As 6, 1988) added). (July (emphasis Council- in Judge Hand went to note Learned Nathanson, man who introduced Cabell, supra, F.2d at must courts HCDA, explained legislation was some always “remember that statutes have regard- intended to accommodate concerns object accomplish, or purpose whose ing authority family members sympathetic imaginative discovery is and incompetent make treatment decisions for meaning.” to their Ac guide the surest in light relatives of the recent enactment of cord, Son District Co J. Parreco & guardianship law. Id. at 6. Comm’n, A.2d lumbia Rental Hous. Cabell). kind problem (D.C. 1989) which the HCDA (quoting Ac designed is was to address similar to that cordingly, identify the mischief we must A.C., supra. estab- presented cure, in The Act designed to legislation a regime lished under which a “mak[ing] plain out of rather than fetish followed, patient’s wishes are while “wallowpng] in literalism” to meaning,” or incompetent patient, of an a “substi- case Parreco, legislative intent. su defeat made; judgment” judgment tuted pra, 567 A.2d at must be an estimate of based on informed Alvey for the As Chief stated Justice if he would have desired what century ago parte in Ex almost competent. she had There is not been (1894), Redmond, 3 App.D.C. slightest in or in indication the statute literally, with- legislative history [tjaking language and its the Council was addressing, regard- pur- or entertained view occasion and out reference to the disputes certainly ing, statute, the resolution of an between it would pose of the asserting an pretrial detainee enough embrace comprehensive bodily integrity prose- and a But question. here proposed appeal govern- cutor who countered with the has be construed every must statute bring- ment’s law enforcement interest original intent and reference ing the accused to trial. makers, intent and which meaning of the from the collected meaning may As in his our decision discussion enactment, and necessity of cause or A.C., on the of the word Khiem focuses use accomplished to be objects intended se Quoting 21-2201. somewhat “all” § pur- objects known by it. With the lectively from Nat’l Bank v. District Riggs view, lan- general (D.C. poses of statute Columbia, A.2d restricted should be guage may and 1990), interpreting argues “[i]n objects and of such statute, accomplishment clear and if the words are ... be made to embrace unambiguous, give purposes, effect to must [a court] authors contemplated by the objects plain meaning.” Two later its sentences [a that "it is to have ellipses quotation replace added useful 16. We farther 15. The in Khiem's dictionary] Id. words “we are mindful the maxim.” around.” six words tends to convert an omission of these statutory aid to allusion to a maxim which interpretation supposedly ironclad rule. into a of the statute. This is an provide old and well Khiem with an adversarial hear- settled canon construction. ing; (3) that it was error for the court to changed,

Times have but the canon sur- vives; order the psychotropic administration of passage might well have been drugs objection written over Khiem’s present with the ab- case in mind. expert sence testimony to a reason- Finally, interpret were degree certainty able of medical that the proposes, HCDA as Khiem that statute probably medication would render Khiem effecting partial implicit would be repeal competent trial; to stand and 24-301(a). Under the terms of the § (4) hospital’s that the decision to medi- statute, earlier a committed arbitrary cate and capricious, was and Khiem’s protected only circumstances is approved by should not have been arbitrary capricious and treatment de court. hospital officials, cisions of and does not

have the kind of unfettered decision-mak We address each of these contentions in ing authority over his treatment contem turn. plated by B, the HCDA. See Part II su B. The Trial Court’s Standard Re-

pra. Repeals by implication are not fa view. vored, and this canon must be taken seri Khiem’s claim judge that the trial ously; lip mere service to it would leave should not hospital’s have deferred to the legislators in perpetual state of uncer judgment under the circumstances of this tainty about possibility every new case raises the most proce difficult of the enactment have unintended conse dural presented issues which have been quences. Speyer Barry, 588 A.2d substantia] Although our review. evidence (D.C.1991); 1165-66 see also United States presented support was finding Hansen, 249 U.S.App.D.C. administration of (1985) (Scalia, J.), cert. de to Khiem was warranted even aside from nied, government’s interest, law enforcement L.Ed.2d 571 11, supra, sequence see n. of events IV this record demonstrates that the treat precipitated ment incompe PROCEDURAL DUE PROCESS ISSUES tency percep the court’s reasonable A. Khiem’s Contentions. steps tion that all reasonable should be taken to Finally, render him stand claims that the trial. and the trial court procedural denied him

protections guaranteed by the Due Process Psychiatrists experts in determining are Clause of the Fifth Amendment. He main- desirability of a course of tains that law enforce- achieving given treatment as a means for ment interest in attempting to restore his objective, in identifying medical competency is support insufficient to appraising the medical risks that such a order; judge’s rejected we have course of treatment entail.17 Their contention in Part II of this and do not, however, expertise does extend to de- not revisit it here. Khiem also contends termining, weight giv- much how should be (1) that the trial erred in defer- en to the needs of law enforcement authori- ring hospital’s to the psychiatric judg- bring incompetent pa- ties who seek to principal question ment when the before tient to trial and who ask the court legal him was a one rather than a medi- liberty bodily override his interest in his one; cal integrity. The reasons for the court

(2) hospital’s procedures apply were a deferential standard of review are fatally they defective patient’s because did not their zenith when antipsychotic professionals.” Harper, 17. "The risks associated with assessed medical su- ones, drugs part pra, are for the most best 494 U.S. at 110 S.Ct. at 1042. Charters, They supra, medical are issue. are also F.2d at 307- interests at logically compelling when less non-medical 312.18 be included in the factors must decision- case, in present Harper In the as and

making calculus. Charters, judgment an informed medical Nevertheless, it has been held that proposed of on the benefits and risks the of measure to psychi- substantial deference weighing to the and treatment central where, judgments is appropriate atric even interests, competing of the accommodation here, governmental of as interests a non- reasoning Harper and of the courts in the weighed medical are being against nature in full applies and measure.19 Charters patient’s Harper, supra, the interests. conclude, contrary if were to to Even we at S.Ct. the passages Harper the from and quoted Supreme analyzed the issue fol- as Charters, impli- legal that the “societal and lows: judge of the issue before the trial cations” Notwithstanding the risks that are in- hospital’s less to warranted deference the volved, conclude an in- we that inmate’s it, judge recommendation than the accorded adequately protected, terests and are any prejudicial error would not be perhaps served, by allowing better the recog- obviously The Khiem. trial by decision medicate made to be medi- importance the of nized professionals cal than a judge. rather interest; indeed, law it was enforcement The Due Process has never Clause been allusion to that Judge Shuker’s thought require the neutral and in motion the events which culmi- that set detached trier of fact law trained or a be Judge entry by of the nated Scott (Cita- judicial or officer. administrative Moreover, if the appeal.20 order now on quotation tion and internal marks omit- weight to the to be accorded to decision as ted.) Though it cannot be doubted that one, sug- as legal that interest is a Khiem the decision to has societal medicate gests, ultimately then it is one which this implications, and legal Constitu- Realistically, we have court must make.21 prohibit tion the State does not from it, made for we have held this already permitting personnel make govern- record the this procedural under decision fair outweighs ment’s law enforcement mechanisms. bodily espe- integrity, interest in added.) (Emphasis added it The Court safeguards for which cially light “ignore requiring the fact that could provides. court’s order hearings scarce judicial prison will divert but, case time, asks us to remand the resources, money Khiem the staff’s both and circumstances, a remand would mentally ill under these care and treatment 232,110 1042; recently As purpose. inmates.” see serve no useful Id. Charters; Charters, Harper pointed inconsistency in- between 18. As the court out deed, leaving point phy- us in the same decisions to the two decisions alternative base-line judicial subject sicians ness, review for reasonable- direction. problems: its own has found, Judge subsequently we have 20. Scott regime proposed install the federal would noted, pres- hospital’s that the officials were procedural providers courts as the base-line prosecution the court or sured process, collapsing normal review due their judgment. professional their abandon this function. With function into threshold witnesses, judge and we are satisfied heard cumbersomeness, go all ex- finding. ample support for his that there delay judicial pense, proceed- incident to involuntary ings every time supra, Harper, n. decision had to be made for inmate. that in the 1043 n. the Court noted at 309. cases, judges overwhelming majority and oth- Indeed, have concurred implicitly acknowledges er decisionmakers outside pa- treating physician’s treat a decision to position brief his cannot reconciled Charters, involuntarily, practical effect suggests but has tient Charters initially by requiring effectively the decision to made overruled been Harper. judge thus be '‘chimerical.’’ We discern no Court's later decision banc, had occasion to observe en re- profes- Patient Advocate is a mental health “[t]o simply purpose mand the case for the sional pa- who trained to advocate the requiring prescribed to make the tient’s interest. The Advocate meets with finding symbolic now would be a rather patient, informs him the nature of act, practical treatment, than a which we view as and advises him of unnecessary incompatible good and as procedural rights. It is also the Advo- judicial husbandry.” Melton, supra, 597 responsibility convey cate’s patient’s (citations A.2d at 908 quota- and internal hospital’s concerns to the Medical Director. omitted). tion marks Policy provides The CMHS two levels of independent administrative review Hospital’s C. The Procedures. treating physician’s recommendation. The proce Khiem contends that first level by of review is conducted by dures hospital utilized in this case Medical Director of the Division where the fail applicable to meet constitutional re patient is housed. The by second review is quirements. agree. We do not the Chief Clinical Officer. Neither of these reviewing officials is a pa- member of the procedures The involuntary for the ad- tient’s treatment team. governed ministration of medication by are Policy CMHS22 (April 50000.430 2A regime The hospital at the is similar in 1990). This nine-page single- detailed respects approved most by the Su- spaced provides document pertinent part preme in Harper, supra, Court 494 U.S. at be administered to a 228-35, true, 110 S.Ct. at 1040-44. It is patient out, points procedure that the in accordance with Policy [only] this issue in Harper included an adversarial patient has been hearing.23 afforded a consulta- gave indication, The no Court Advocate, tion with the however, Patient and an hearing that such a was constitu- independent administrative tionally required. Indeed, review of the in Parham v. treating physician’s J.R., decision to involun- 442 U.S.

tarily administer (1979), medication has been 61 L.Ed.2d 101 performed. patient A right also has the held in comparable a somewhat context request by that, a review the Chief although hearing Clinical such a may be re- Officer, or the quired law, administration ... medical as a matter of state “due director if he/she is not satisfied process with the is not violated the use of infor- resulting mal, recommendation from adminis- investigative traditional medical tech- trative review. niques.” Policy provides court, CMHS patient Charters, supra, relying

with notice of the involuntary Parham, explicitly held that no adversarial treatment, and assures that the hearing constitutionally required.24 We rights advised of his pursuant to it. The reach the same in this conclusion case.25 practices sis, diagnosis, 22. CMHS is an progno- abbreviation for the Commission treatment and on Mental Health Services. with the aid of such technical tools and techniques appropriate consultative as are Stevens, joined 23. Justice who was in dissent profession. Id. at 607-08 S.Ct. at [99 Marshall, Justices Brennan and characterized 2507], hearing as a "mock Charters, trial before an institu- supra, 863 F.2d at 312. tionally Harper, supra, biased tribunal." 110 S.Ct. at 1045. 25.Khiem also that the failed contends Policy to follow its own because it made no 24. The court said: finding capacity explicit as to his to make a Making acceptable professional judg- analysis, treatment decision. Under our require government's bringing ment of the sort here in issue does not interest in Khiem to trial Parham, hearing. outweigh any objection part internal adversarial on his even ("not capacity object, psycho- 442 U.S. at 607 necessary ... if he had so that [99 2507] deciding physician tropic properly that the conduct medication could be adminis- quasi-formal hearing”). regardless a formal or The deci- tered to him of whether or not upon accepted sion be based medical he should decide whether Charters, process_” supra, 863 Be- Sufficiency the Connection D. (citations omitted). and the Treat- tween the Treatment ment Goal. Irrationality. E. Arbitrariness hospital’s that the

Khiem contends because, according arbitrary decision was Khiem also contends that the hos testified, him, to a reason doctor has no pital’s treatment decision must fail the test certainty, degree able of medical rationality lack arbitrariness be probably will render proposed treatment cause the hospital’s decision medical competent to trial. He Mr. Khiem stand personnel exclusively was not made this contention on Jack apparently bases patient’s Harper, interest. Indiana, son however, it beyond court made clear (1972). 32 L.Ed.2d 435 Jackson does not peradventure that determination support claim. turn whether to medicate does not exclu interests, question sively patient’s but also The was whether a Jackson may requires legitimate state criminal defendant committed in- consideration 223-26,110 Id., definitely solely account of his lack of interests. 494 U.S. capacity trial. The Court held at The en to stand 1037-39. law person signifi so is a that detained “cannot be held forcement interest this case D, period one, supra, II more than the reasonable of time cant see Part and we hold necessary whether there is proper to determine consider it. that it was to probability he will attain substantial not a case in which a court autho- This is future.” capacity the foreseeable complex perform to brain rized the 92 S.Ct. at 1858. the absence Id. charged with dis- surgery on an individual probabil- showing of a of such a substantial Rather, hospital has orderly conduct. ity, the defendant must be released or civil treatment of recommended proceedings must be institut- commitment duration, closely to mon- which is limited ed. Id. through itored, permit a determination to holding eminently provides This sensible to whether Khiem judicial process as physi- support for Khiem’s claim that no premeditated murders. committed two inaugurate course of treat- cians which, testimony heard medical proba- ment without advance assurance of him, pro- credited established Indeed, ble Jackson addressed success. posed was consistent with sound treatment involuntary medi- question neither the practice. to follow the medical His decision scope cation nor the court’s review hospital’s neither ar- recommendation judgments. Harper, on the oth- medical bitrary nor irrational. hand, held that the er reviewing governmen- proper for standard V kind situation is to tal conduct its determine reasonableness. CONCLUSION 222-23, basic 110 S.Ct. at “[T]his committed to regime decision —base-line reasons, ap- order foregoing For the judicial professionals, re- subject medical hereby pealed from is recently been for view arbitrariness —has comporting with due upheld as Affirmed. being incompetent purpose controlling govern- tent for that and

receive such treatment. receiving or raised interest therefore renders issue own interests determine one's ment by irrelevant, medication, and do not reach it. cer- refusing difference "must however, note, complexity subtlety tainly found and that Khiem was be one of such We trial. there to stand While perception the most skilled to tax being incompe- theory between be a difference ROGERS, Before: Washington Harper, v. Judge, Chief and 221- FERREN, TERRY, STEADMAN, 1028, 1036, 108 L.Ed.2d 178 SCHWELB, FARRELL,* WAGNER, held, moreover, This court had KING, SULLIVAN,* Associate “right bodily integrity belongs equal- Judges. ly persons per- who are A.C., In re 573 A.2d sons who are not.”

ORDER (D.C.1990) (en banc). Further- PER more, that, CURIAM. given we had stressed the con- stake, rights stitutional government On consideration of appellant’s petition lawfully person’s cannot override a objec- banc, rehearing en the motion for leave tion “compel- to forced medication absent a supplement to file petition, lodged ling state interest.” Boyd, In re 403 A.2d supplement, Legal the motion of Counsel A.C., (D.C.1979); see In re Elderly curiae, for the appear as amicus (“truly A.2d at 1247 extraordinary or com- lodged curiae, brief of amicus re- Law, reasons”); see also pelling State sponse, thereto, opposition, reply it is (1978) S.C. S.E.2d granted ORDERED that the motions are (“compelling required state jus- interest” and the Clerk is lodged directed to file the Lover, medication); tify forced State supplement petition lodged to the and the 685, 690, Wash.App. 1351, 707 P.2d 1353- curiae; brief of amicus appearing and it (1985) (same). majority judges of the of this court However, in this deny petition has voted to case—without even dis rehearing for banc, cussing “compelling en it is state interest” court, test —a of this adopting division FURTHER ORDERED petition approach, trial court’s govern held that the rehearing for en banc is denied. may incompetent ment force-medicate an pretrial in ROGERS, C.J., detainee an effort to restore FERREN, J., voted grant competency rehearing when the state’s interest en banc. doing merely so meets a test of “reason FERREN, Judge, Associate with whom ableness,” Harper, 494 U.S. at 223, ROGERS, Judge, joins, stating Chief 1037, incompetent S.Ct. at unless the can rehearing reasons for this case en banc: demonstrate that the state’s ac This case impression juris- of first in this tion “arbitrary capricious,” would be presents diction question exceptional “a of Charters, United States v. 863 F.2d importance,” 40(e): D.C.App.R. whether— denied, (4th Cir.1988) (en banc), cert. and, so, under what circumstances —the 108 L.Ed.2d S.Ct. government lawfully compel can person a division, therefore, created charge first-degree detained under a cases, own, composite its test from two murder, incompetent but found to stand Charters, Harper derogation not trial, to receive medication for prescribed by our own standard purpose restoring competency. A.C.) (Boyd, also cases caselaw but jurisdictions on the divi other I. Lover). {Law; sion itself relied As of the time the division issued its first the full court May On before in this case on March rehearing en petition could act Supreme prison Court had said that even a Riggins banc, Supreme Court decided (and, accused, presumably, inmate an such — Nevada, -, Khiem, U.S. tried) as yet who had not been which, (1992), as the divi- “possesses 118 L.Ed.2d 479 significant liberty a recognizes, made its earlier avoiding the sion now own unwanted administration of antipsychotic drugs obsolete. As analysis under the Due Process in this case Justice Harper said, Clause of the Fourteenth Kennedy Amendment.” author of — —the * Charters, professionals.” Judges psychiatric supra, 863 Farrell and Sullivan have re- Associate F.2d at 310. cused themselves from this case. prevent continued use would concurring judgment Riggins, in the a its force-medicating showing jurors pretrial detainee his true mental state when case insanity like Harper,” “is not a case an The Court Washington offered defense. the earlier Court decision concern- antipsy- held that forced administration of process due ing an incarcerated felon’s during trial chotic medication violated (in peno- state’s rights the context rights guaranteed the Sixth and Four- logical orderly administra- teenth Amendments because the record the division had prison) tion of its on which finding might support no contained — Riggins, at principally relied. U.S. antipsy- administration of conclusion that J., -, (Kennedy, con- at 1818 S.Ct. necessary chotic medication accom- curring). plish policy. an essential state The Court requires stressed forced medication consequence the divi- Riggins, As a “overriding justification and a determina- rehearing sig- very has made two sion — appropriateness,” U.S. tion of medical first changes opinion. nificant from its at-, the division First, substantially it raised the stan- has recognizes. must meet a now Ante government dard before [165]. pretrial detainee can force-medicated. Riggins that “the The Court noted Harper’s “rea- The division has abandoned question criminal de- whether sonableness” standard favor tradition- antipsychotic refuse medi- fendant scrutiny: strict forced medication must al would ren- cation if cessation of medication “compelling” interest test. survive a state trial is not der him [or her] Second, See ante at the division has [166]. at-, before us.” clearly holding its to homicide now limited Thus, put off Khiem- the District have a cases. Whereas giving type day.2 In rea- case to another force-medicat- compelling state interest in ruling, of such a sons for short stopping Khiem, necessarily ing will not the District had “no that it occasion Court stressed force-medicating in have such an interest prescribe substantive stan- finally such pretrial charged with lesser detainees above, since Dis- dards as mentioned crimes.1 of Mel- trict allowed administration Court say the division This not making any deter- laril to continue without stand, sufficiently for should it fails to deal any or need for this course mination of the prescribed by Rig- criteria with other reasonable alternatives.... findings about gins to which I now turn. concern —a finding Nor the order indicate did compelling other safety considerations or

II. in outweighed Riggins’ interest concerns antipsychotic from unwanted freedom competent criminal defen- Riggins, — at-, drugs.” S.Ct. at Id. U.S. suspend moved to the administration dant short, added). In Mellaril, (third emphasis drug, af- 1815-16 until antipsychotic of an on the absence things) the case trial, arguing (among other Court resolved ter already drugs antipsychotic overriding have assumes the District have an state 1. Nor does force-medicating every per incom- for medical se to the detainee been administered reasons, murder; charged petent pretrial with detainee administration "was and that such — balancing requires of the a careful each case Riggins, medically appropriate.” U.S. competing and the state’s interests. Court, therefore, individual’s -, 112 S.Ct. at 1815. show, particular in a case were to the record If terminating question entirely on the focused example, forced-medication would for longer wished to defendant no medication the or, event, dangerous effects cause side antipsy- Khiem’s situation: take. In contrast is competency, likely be to restore would not drugs for never been administered chotic have alleged bringing government's an reasons, had because Khiem’s doctors medical probably not override murderer to would pa- such treatment determined remaining drug interest in free. the accused's posed no and because Khiem tient's best interest Thus, Khiem has threat to himself others. important note that the Court’s entire It is drugs could serve experience no with such did reach the Court discussion of issues evaluating possible side effects. Khiem-type as Riggins including a basis for situation— — findings, leaving given present understanding our of the it to the trial court on — stan- properties drugs.” remand to address the “substantive of these Id. U.S. at — at-, added). dards.” Id. U.S. -, (emphasis probability He added that “the documented me to render invol- of side effects seems to Court, in majority The six of the member untary drugs by pros- administration of O’Connor, opinion by did note an Justice unacceptable ecuting officials absent showing by the State that side effects will certainly Nevada have satisfied defendant’s reactions or di- not alter the prosecution process due if the had dem- counsel.” Id. capacity minish his assist had onstrated and the District Court — at-, Fur- U.S. S.Ct. at 1819. antipsychotic that treatment found thermore, said, my view medication medically appropriate “[i]n medication was [1]

and, ^[2] considering less intrusive alter- type here be for the prescribed may natives, gins’ own ^[3] safety essential for the sake of or the safety others. Rig- the defendant’s own very purpose imposing constraints on will, and for that rea- Similarly, legitimacy put grave the State might have been able son its doubt.” — justify medically -, appropriate, involun- 112 S.Ct. at 1820. Id. tary drug by treatment with the estab- Accordingly, appears it that Justice Kenne- lishing adjudi- that it could not obtain rarely, if dy believes forced-medication will Riggins’ guilt cation of or innocence ever, appropriate under the current be using less intrusive means. [Citations knowledge, for he conclud- state of omitted.] ed that at-, (empha- 112 S.Ct. at 1815 If the State cannot render defendant added). guidance sis That is all the involuntary medi- gave. however, Significantly, cation, then it must resort to com- civil clear, foregoing statement makes the Court mitment, appropriate, unless defen- involuntary indicated that competent through dant becomes other necessarily permitted would not for ev- If cannot tried means. the defendant detainee, ery pretrial even if less intrusive being without his and demeanor behavior achieving means were not available way by in this invol- affected substantial competency. treatment, untary my view the Consti- Kennedy, writing separately, Justice society requires tution that bear this cost stressed the limitations on forced medi- integrity of the preserve in order to the (leav- Concurring cation. in judgment the process. ing only in dis- Justices Scalia Thomas Id. sent), pointed out that “this is not a case in Kennedy opinion, Justice wrote Washington Harper, like majori- he believed the Court part, because (1990), 108 L.Ed.2d 178 in enough instructing in the ty go did not far purpose involuntary the which of the medi- do, about what to substan- District Court cation was to insure that the incarcerated — at-, tively, remand. U.S. See id. person physical danger ceased to abe to The fact that the six- — 112 S.Ct. at 1818. at-, himself or others.” U.S. 112 majority go further —ab- member did not J., (Kennedy, concurring). 1818 “briefing argument,” sent or id.—does Emphasizing potentially dangerous the side disagree with necessarily mean it would medication, antipsychotic Justice effects addressing Kennedy the sub- Justice when Kennedy express wrote to his view that issue, in case such as especially stantive extraordinary showing by an “absent where, Riggins, this in contrast with State, prohibits the Due Process Clause never taken defendant has administering in- prosecuting officials finding of is no clear drugs and there voluntary antipsychotic doses of medicines — at U.S. appropriateness,” “medical purposes rendering the accused com- for fear of -, cases, 112 S.Ct. at to ex- petent for trial in most 2. made, supra note dangerous side effects. See showing press doubt that the can 178 underscore, moreover, important to emphasize is to that It is important

It Harper Riggins, Riggins in as in to the as well both majority referred and Charters (on relies), “finding safety for considera- division need compelling concerns premised analysis out- courts their as much or tions other patient’s own medical interest as on weighed Riggins’ interest in freedom from on — contrast, In state’s interest. this antipsychotic drugs,” unwanted U.S. at added), -, finding no 112 case there no trial court (emphasis S.Ct. at 1816 —and Kennedy ruling by this and that referred to the court —that Justice ” showing “extraordinary proposal be- force-medicate Khiem was need an id. independent can his medical permitted, fore force-medication — at-, compe- (empha- making state’s own interest him U.S. S.Ct. at 1817 Indeed, added). much like the tent to stand trial.6 there is very sis This sounds forced finding interest” test even a “compelling state and in A. C.4—and likely competence. Nor adopted Boyd3 has restore courts, any findings, there as there were in the state cited the division in are Charters, Khiem, considering Harper and in Khiem is adopted have when Law, forced medication. See dangerous and that such medication is nec- 270 S.C. at protect (“compelling essary State others.7 There is also S.E.2d question findings as to forced medi- serious whether required justify interest” Lover, Riggins, cation); effects sufficient under Wash.App. side are (same).5 surely insuffi- findings and these would be P.2d 1353-1354 (D.C.1979). "com- Boyd, In re A.2d Nevada court’s failure indicate whether 3. 403 that, situation, outweighed Boyd nonemergency Riggins’ pelling in a in- held concerns [state] compel involuntarily hos- antipsychotic the state could not an terest in from unwanted freedom — person -, pitalized, mentally ill and drugs,” at 1816— S.Ct. objections psycho- religious who to take voiced virtually compelling announces that state will, tropic drugs against her which was to be at-, applies. test See id. ascertained, necessary, using substituted J., (Thomas, dissenting). at 1826 There is judgment analysis. principled way, Riggins, after the trial no Harper's "reason- court on remand can revert (en A.C., (D.C.1990) In re 573 A.2d ableness” test. banc). A.C., we reviewed a court-authorized dying on a woman "caesarean section hospital’s treat- The trial court found that life of her child.” Id. effort save the unborn Khiem was ment decision to force-medicate virtually "in all cases the at 1237. We held that clinical considerations and based reasonable question is to be done is to be decided of what bias, was not or institutional patient pregnant "influenced by the woman —on behalf —the any perceived comply desire to wishes fetus. If is incom- of herself and the give government petent an informed in this matter.” or otherwise unable to the Court physi- goes say course of medical treat- consent to a than to But this no further ment, her decision must be ascertained then cians made a decision force-medicate medical through procedure as substituted professional judg- known compromising their judgment,” means that "the ment; id. at finding that had a it is court, surrogate incompetent, for the receiving with- interest in medical indi- it can what choice that determine as best regard out to his trial. vidual, A.2d competent, would make.” 573 omitted). (quotation It is not at all clear court and the division of this The trial court 7. incom- trial court has ruled that a detainee the charged may with that a man have assumed give incompetent petent is also to stand trial murdering dangerous parents others— treat- consent for invasive informed particular al- may true —but that and that ment. leged may not indicate more homicide warranting generalized dangerousness medi- majority Riggins specifically es- 5. The Court finding on issue. Foot- — There is no cation. scrutiny, adopting chews a standard of strict opinion originally and note 11 the division at-, not because the — U.S. evidence, rehearing merely to record on refers majority disagrees but with such standard — findings, concerning Khiem’s not to court finally majority has because the "no occasion — rely danger. on potential This court should prescribe U.S. such substantive standards.” fact-finding opin- its at-, appellate buttress reasoning court at 1815. The Court’s e.g., language, its focus on the ion. however— Kennedy’s cient Justice state-compelled injections body view.8 of mind and controlling drugs into an hu- fact, earlier, supra as indicated see being. man Riggins makes clear that this 2, in major note the instant case is a there judicial case is on the frontier of law-mak- factual difference Riggins and from ing affecting exceptionally important other cases on which the division relies. liberty Only interest. judges three out of Here, Khiem has psychotropic never taken formally nine have ruled in this case. medication; effects, the side if any, for him — judges, a third of When the active are Compare unknown. Riggins, U.S. lot, this, drawn sits on a case such as at-, (“administration is, definition, minority the decision presumed of Mellaril” “medically appropri- ruling recognizes if one sug- ate” because defense en banc counsel never gested responsibility court has a “medically improp- excep- treatment was to hear all er”); Law, tionally important D.C.App.R. S.C. at 244 S.E.2d at cases. See (“psychotropic 40(e). positive medications had We should rehear this case en banc effects”); Lover, Wash.App. court, 707 to determine whether the full after (medication P.2d at 1354 possible” “made it immersing itself the briefs and record— “appearf for defendant at trial and and argument focusing Rig- ] after oral witnesses”). This makes it all confront[ ] gins agrees with the division’s result and — important the more for the trial court to reasoning. very specifically address question

whether, any absent medical track record Khiem, forced medication “medically appropriate.” Riggins,

at-, 112 S.Ct. at 1814.

The division rehearing, there-

fore, despite honoring Riggins important

respects, require fails to the kind of trial WATSON, Jr., Appellant, Leonard findings L. essential under Riggins to

protect liberty interest. STATES, Appellee. UNITED

III. No. sum, 89-CF-457. opinion, division on rehear- ing, fails grips to come to as a matter of Appeals. District of Columbia Court of law—and as a matter of fact on this findings required, light record—with the Argued April Riggins, before a court order 12, Decided June pretrial forced-medication of a I detainee.

am deeply troubled that this court is either busy

too or too unconcerned to sit as a full important

court to hear this issue about here, findings 8. There are appropriate steps as there in Har- were shall be taken Hos- clinical Charters, per and in that Khiem will be ade- pital Mr. Khiem shall suffer staff in the event quately protected against possible dangerous effects, including side termination of such side effects from the medication. treatment, medications if nec- Hospital’s procedures trial court found that "the essary being of the defendant." for the well patients require for treatment of medi- who findings fall short of assurances “that These cation constitute careful scheme which assure significant risk that the medication there is no possible that all effects of the medi- way impair material will or alter cations will be taken in to before consideration capacity willingness defendant’s react undertaken, possible treatment is and that risks trial," testimony side and “that the effects against pos- of such treatment will be balanced or dimin the defendant's reactions will not alter sible benefits of such treatment.” The court Rig capacity ish his to assist counsel.” [or her] carefully ordered "that Mr. Khiem shall be mon- -, gins, 112 S.Ct. at Hospital potential itored staff for harm- treatment, J., (Kennedy, concurring). ful side effects of the said and that

Case Details

Case Name: Khiem v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Mar 20, 1992

Citation: 612 A.2d 160

Docket Number: 91-CO-1028

Court Abbreviation: D.C.