*3 HARRIS, PAMELA Cirсuit Judge: Following his for firing handgun arrest a at a helicopter, Coast Guard appellant Watson, (“Watson”), John Jr. who suffers Disorder, from Delusional Persecutory Type, incompetent was found to stand trial and committed to custody of the Attor- ney General for mental health treatment vens, J., concurring part in dissenting refused to After Watson and evaluation. in order to part)). antipsychotic take competent, district himself
render
reasons,
rec
For those
as we have
government’s request
granted
anti-
ognized, the forcible administration of
by force. Given the
that he be medicated
a
depri
medication “constitutes
stake,
at
we re-
liberty interests
critical
liberty
the most literal and
vation
heavy
a
to meet
quire
government
Bush,
sense,”
I.
interest,
Harper, qualifies as such an
injection of medication into
“The forcible
may justify involuntary medication when
...
nonconsenting person’s body
repre-
a
suffering
an inmate
from a “serious mental
with that
a substantial interference
sents
“dangerous
is
to himself or oth
illness”
Nevada,
liberty.” Riggins v.
504
person’s
ers,” and “the treatment is in
medical
[his]
1810,
127, 134, 112 S.Ct.
118 L.Ed.2d
U.S.
227,
interest.”
494 U.S. (1990)). mentally danger ill who is not is defendant L.Ed.2d 178 The interference case, when, or others within the mean as in this ous himself “particularly severe” forcibly may nevertheless be question antipsy- ing Harper medication in is an 134, chotic, purpose at 112 the sole of render Riggins, 504 U.S. S.Ct. medicated for Sell, 1810, of such medications to stand trial. See ing competent for the use him “mental, 179, well 2174. But that an individual’s as at 123 S.Ct. threatens 539 U.S. integrity,” States v. Forcible physical, exception, United not the rule. is Cir.2010) White, 401, (4th 422 justified every 620 F.3d time an is not (Keenan, J., concurring). physical treatment; On the incompetent defendant refuses side, there is the “violence inherent may contrary, on the “those instances id., medication,” compounded forcible 180, 123 2174. As we rare.” Id. at S.Ct. by the antipsychotics it comes to when medication un emphasized, have forcible fatal, “serious, even side ef- possibility of casually “a that must not be der Sell is tool (cid:127) 229, fects,” 110 Harper, 494 U.S. at S.Ct. vigilant must be deployed,” and courts person’s into a 1028. But it is the invasion orders, “carry which ensure that such truly distinguishes anti- mental state “rou unsavory pedigree,” do become expressly a class of medications psychoties, Chatmon, 718 F.3d States v. tine.” United “to alter the will and the mind intended (4th Cir.2013). 369, 373-74 Bush, subject.” v. 585 United States (4th Cir.2009) risk of erro 806, To “minimize[ ] Har- (quoting F.3d 813 (Ste- context,” 238, important decisions in this at 110 1028 neous per, 494 U.S. S.Ct. 420 2174) (internal deliberately quotation 123 S.Ct. marks high standard
we have set omitted). “Third, satisfy may medi government for the before necessary an in cation must be to further the forcibly solely medicate to render Bush, interests, and less intrusive to stand trial. 585 competent mate unlikely to achieve sub appeals Like other means must be F.3d at 814. courts issue, stantially (citing Id. the same results.” require to consider the we 2174). Sell, 181, 539 U.S. at government meet its burden the “clear S.Ct. Id.; see, con finally, Fourth and “the court must convincing” e.cj., standard. Dillon, 284, drugs is v. 292 clude the administration of States 738 F.3d United (D.C.Cir.2013) medically patient’s in the (“Holding appropriate and ' convincing proof light best medical interests med [his] to a clear and standard Sell, (citing to the nature of ical condition.” Id. regard affords due U.S. 2174). 181,123 demanding liberty interest at stake forced-medi S.Ct. With this Green, cases.”); mind, cation States v. standard in we now consider wheth United (6th Cir.2008) 538, (applying properly er the district court found that standard); justified clear and United forcible medication is in this case. (2d Gomes, Watson, 1:13-cr-366, States United States v. No. Cir.2004) (same). (E.D.Va. burden, heavy That Apr. 2014 WL at *1 2014). of such that it requiring weight “evidence
produces in the mind of the fact a trier of *5 conviction, hesitancy, belief or without
firm II. allegations sought
as to the truth of the to A. established,” proves be or “evidence that to highly the facts at issue be probable.” 28, 2012, September On was ob- Watson 284, Heyer, United States v. shooting handgun served a at a Coast (4th Cir.2014) (quoting v. Daim Jimenez helicopter flying Guard overhead. The (4th 439, lerChrysler Corp., 269 F.3d helicopter damaged, was and none of Cir.2001)). employees the three Coast Guard on board 15, 2013, injured. August On Watson context, require In this we was indicted for attempted destruction of government prove by clear and aircraft, 32(a)(1), (8); § 18 U.S.C. pos- “First, evidence each of four factors. felon, by session of a firearm a 18 U.S.C. government must ‘important show § 922(g)(1); and a during use of firearm governmental interests are at stake’ and violence, 924(c)(1)(A). § crime of 18 U.S.C. special circumstances do not suffi White, ciently mitigate Days arrest, those interests.” after magis- Sell, at (quoting judge granted parties’ joint 539 U.S. trate mo- 2174). 180, Second, 123 S.Ct. govern competency hearing, tion for a and Watson ment “involuntary must show that medi psy- was interviewed licensed clinical (“Peter- significantly ... chologist cation in Dr. further[s] [its] Rebecca J. Peterson son”). terests,” requires which proof that Watson told Peterson that he had “substantially likely medication is operative to ren been a covert for the British der competent old, the defendant to stand tri special years forces since he was seven “substantially unlikely al” and to have side that the Coast Guard and Secret Service effects that will significantly among government agencies interfere with were ability “working help protect defendant’s to assist counsel at him from danger Sell, (quoting 181, him,” trial.” Id. guide 539 U.S. at and ... that certain “entities Sell, Lucking’s quired by report we review comput- and phones ‘tapped’ ... ha[d] testimony in some detail. and on his been er,” ha[d] “that someone papers.” through his letters going boat diagnosed report, Lucking In his Wat- indicated that this delu- further Watson Disorder, Persecutory Delusional son with guiding of beliefs had been system sional a rare mental illness characterized Type,1 February least since at his behavior presence “the of one or more nonbi- D.C., Washington, in the he arrived when for at persist zarre delusions that least one protection in order to seek the area reported further Lucking month.”2 Embassy and was referred to St. British had not been treated Watson’s delusions Elizabeth’s”) (“St. Hospital Elizabeth’s antipsychotic medicаtion at FMC health treatment. Butner, mental and that Watson had refused treatment. believed accept such interview, Peterson the basis of this On gravely to be neither disabled nor Watson par- “unable to that Watson was concluded inmates, or other danger to himself effectively in his meaningfully and ticipate required justify forcible medi- would be delusions, as a result of his defense” Nevertheless, he Harper. cation under as a his belief that his status forcibly recommended Kingdom for the United operative covert antipsychotic risperi- with the medicated immunity. The diplomatic him to entitles done,3 asserting “antipsychotic medi- agreed, and Watson was magistrate judge likely substantially cation is to render Medical Center transferred to the Federal trial.” competent stand [Watson] (“FMC Butner, But- North Carolina Lucking as- support opinion, of his ner”) for mental health evaluation support that “there is extensive serted treatment. literature that individuals psychiatric later, April six months on Approximately of a illness diagnosis with the to the submitted psy- reduction their obtain substantial Butner completed by FMC anti- report court a treated with symptoms chotic when *6 Lucking medication,” body Dr. Robert G. that “a psychiatrist and staff proposition recommended (“Lucking”), supports which the related evidence” to to forcibly medicated order individuals “can be restored Watson be that such antipsy- trial. Be- with competent him to stand when treated competency render exclusively Lucking on also asserted government relies chotic medication.” cause the during risperidone a taken to show there is sub- that Watson had Lucking’s opinion Elizabeth’s, from 2009 admission to St. medication his likelihood forcible stantial inference “logical Lucking re- which drew competent as would render Watson contrast, clearly implausible, not under- "Per- are experts in case use the terms standable, ordinary secutory Type” Type” inter- from life and "Paranoid and not derived - clarity consistency with changeably. and For the belief that in- experiences, such as one's Diagnostic and Statistical Manual Men- organs removed and re- have been ternal Disorders, consistently refer to Wat- we tal organs leav- else's without placed someone "Persecutory Type.” condition as son’s ing a or wound. scar a if it involves is "nonbizarre” 2. A delusion generic experts in this case use 3.The conceivably occur in real that can situation brand name "risperidone” and the name followed, life, being poisoned, infect- such as clarity, interchangeably. we “Risperdal” For here, ed, being re- conspired against or, as— drug by generic consistently refer to operative for a a covert cruited to work as “risperidone.” name delusions, by government. "Bizarre” foreign positively treatment, responded to the make his condition to [that Watson] resistant However, drug. Lucking use” of that ad- pharmacological psychological. whether or mitted that he did not have the medical expressed involuntary He concern that the admission, from that records and later tes- did not address adequately tified that he would have recommended “strongly Watson’s report- held beliefs and if risperidone even Watson had never re- personal experiences ed psychotropic it before. ceived medications,” including “pronounced fears death,”
Finally, during hearing govern- opined on the that “[f]ailure to medication, request ment’s for forcible compassionately address fears these Lucking past experience testified that his [would] of perse- contribute[ ] fears supported as a psychiatrist the use of ris- cution” aggravate and thus his condition. peridone. Lucking asserted that he had Finally, Hilkey indicated that it was his approximately ten patients treated other opinion” held “strongly supportive suffering from Delusional Disorder with cognitive behavioral therapy would medication, antipsychotic and that he “be- compe- “increase likelihood [Watson’s] all of them” had lieve[d] been restored to tency sufficiently restored,” given could was, however, un- apparent “capacity Watson’s form de- provide any able to further information gree therapeutic alliance,” demon- the ten patients, about other explaining trusting strated his relationship with that he could “not remember details of attorneys. his five, six, maybe [he] treated sev- en, eight years ago,” that would B.
in any event be “inappropriate” to share such “treatment clinical information” [and] 7, 2014, On magistrate March judge forum, in a public “even with the [district recommended that forcibly Watson be court].” medicated in order to restore compe- Lucking’s opinion efficacy regarding Watson, tency. *1, 2014 WL challenged *4. The magistrate judge’s findings with on grounds by report several of de- respect first two Sell factors are expert fense psychologist licensed Dr. relevant arguments appeal. on Hilkey H. (“Hilkey”). James respect With literature, to the academic Hilkey empha- respect factor, With to the first Sell sized that “there is little the literature magistrate judge important found “that an referencing controlled, well double-blind government interest is at stake in the *7 research studies as to the efficacy phar- of prosecution defendant,” of the rejecting macological persons treatment of suffering argument that that was interest from Delusional Disorders.” He also mitigated by “the possibility of affirma- pointed out that the studies do that exist tive of guilty by defense not reason of have consistently Persecutory shown the insanity.” *12, Id. at *14-15. In reaching Type of the disorder —from which Watson conclusion, this the magistrate judge as- suffers —to be the “most resistant” to sumed that such a defense could constitute treatment. a mitigating special circumstance, but respect found
With to Watson that Watson had particular, prove in failed to that opined Hilkey “likely that the “[t]he chronic nature of defense was [to] successful” fixed, [Watson’s] illness and the well because proffered estab- he had not expert testi- lished nature of his thoughts” mony aberrant to that effect. Id. at *15.
423 factor, prong under the second met its burden Sell to the second respect With prov- pro- particular, that the in its burden judge found magistrate Sell—and the evidence, substantially that clear and ing, posed treatment To substantially likely is likely to restore Watson’s forcible cоnclusion, judge magistrate the competence4 do reach restore Watson to —we testimony and Lucking’s entirely on possible insanity relied de- decide whether noted, the which, referenced he report, may special is a circumstance fense experiences of the academic literature and prose- in government interest mitigate Delusional Lucking’s other cution, court other- or whether district judge held magistrate Id. The Disorder. finding government erred wise did not Hilkey’s forensic evaluation prong the first its burden under met conclusion, solely Lucking’s “undermine” Sell.5 no- Hilkey’s report ground that on the Lucking’s “directly discredit[ed]” where A. Id. at *16. plan. the second have said We 29, 2014, court is- the district April
On factor involves factual determinations Sell the recommen- order adopting a brief sued White, review, see subject to clear error magistrate findings dations 410, recognize that our F.3d at and we 620 mo- judge granting second-guess a district is not Watson, role medication. tion findings, see States factual United court’s *1, 1901256, order has at *4. The 2014 WL (4th Francis, 265, 273 Cir. v. ap- of this stayed pending resolution been 2012). are, however, en charged with Watson, We No. Order, v. United States peal. actually court (E.D.Va. 2014), suring that the district 27, May EOF l:13-cr-366 necessary findings, and that makes No. 76. legal proper pursuant them makes III. it asks and answers standard —that light of the record as questions right challenges appeal, On Watson —in Mary Washington See Jiminez respect to the whole. findings with court’s district (“We Cir.1995) 369, (4th Coll., 379 of Sell. Because prongs and second first clearly finding being as a factual clearly reverse conclude that district we if, is evidence to ‘although there had erroneous finding government erred below, the district court In the decision objects that this issue is not 4. The dissent insanity possible defense assumed that a us, argu- Watson's properly before and that special circum- could be considered in to the district appeal ment on limited Sell, prong analysis first under the stances court's failure order *2, Watson, have WL see supportive therapy in addition to provide circuit, see, e.g., Unit- within this courts other respectfully dis- We medication. forcible Duncan, F.Supp.2d 765- ed States v. emphasizes agree. While it is true that Rodman, (E.D.Va.2013); States v. United "must be com- Hilkey's view that medication (D.S.C.2006). F.Supp.2d 496-97 therapy order to be supportive bined with is, however, among the courts There division successful,” support of his he does so Compare question. United appeals on the *8 only proposed argument: the ultimate that Morrison, 1180, (10th 1186 415 States v. F.3d "will plan actually before the court treatment Cir.2005) (likely insanity diminishes defense unsuccessful,” “the district that trial), with United government interest finding clear error.” is otherwise court’s 692, (6th Mikulich, 699-701 States Br. 26. Cir.2013) not insanity defense does (potential interest). government undermine 424 it, 241-42;
support
reviewing
the
court on the en-
cient to meet this burden.
at
Id.
Bush,
(“[I]n
left with the definite and
tire evidence is
see
at
816
order to
that a
has
test,
firm conviction
mistake
been
satisfy this second factor of the Sell
United States v.
(quoting
committed.’”
government
only
the
must not
that a
show
Co.,
364,
333 U.S.
Gypsum
United States
plan
treatment
works on a defendant’s
(1948))).
395,
525,
6. The
interrelated in the context of this case that we
dissent takes
justified
addressing
together.
question
them
As
before us is whether the district
are
synthesized
argues
appeal,
properly
the record evi- Watson
on
the district court’s
dence,
sup-
synthesis
precisely
errors matter
because the
and not whether that evidence
ports
holding.
the district court’s
In our
evidence that
view, however,
closely
are
will succeed is so thin.
those issues
so
*10
say that these and other
This is not to
reasoning
that
insubstantiality of
Lucking’s report
in
are
mentioned
studies
in
by the weaknesses
here
exacerbated
They
at all.
fair-
evidentiary weight
noof
Lucking’s
in
re-
actually cited
the studies
to
ly
provide
could be understood
some
thing, many of those stud-
For one
port.
antipsychotic
that
efficacy
antipsychotics
of
concern the
ies
against Delusional Disor-
may be effective
in
risperidone
par-
than
general,
in
rather
alone,
standing
in
But
with-
general.
der
in
ticular,
gener-
illness
against psychotic
explanation
analysis applying
or
their
out
in
al,
Delusional
rather
than
Disorder
individual,
do
findings to
as an
we
White,
at 421
particular. Cf
requisite
they
provide
not believe
can
of doctor’s
(discounting probative value
that the forc-
convincing proof
clear and
expertise,”
“professional experience
injection
risperidone
of
is substantial-
ible
expertise
[was]
doctor’s “area
where
treating
to
Watson’s
ly likely
succeed
disorders”).
not delusional
schizophrenia,
Evans,
delusions.
specific persecutory
Cf.
specifics
address the
they
Because
do not
(finding government
at 241-42
plan or
proposed
treatment
of either
prove
proposed
to
report inadequate
condition, these studies cannot
Watson’s
“substantially likely”
plan
treatment
burden of “re-
satisfy
competency
where
restore defendant’s
lating]
stated
that “suсh medication is
particular medi-
the individual defendant’s
Schizophrenia” and
‘primary’ way to treat
Evans,
to Delusional Disorder indicates-
Persecutory
from the
suffering
viduals
sum,
In
district court
this case did
are “most resistant” to treatment.
Type
searching
not undertake
individu-
Hilkey’s objections to the scientific litera-
likely
alized assessment of
sus-
antipsychotic
ture on the use of
ceptibility to forcible medication that
particu-
Disorder are
to treat Delusional
required by our case law.
It
took the
larly concerning
light
Lucking’s
of
at
it
government
argued
its word when
heavy reliance on this research
his own
requirements
of
had
Sell
been
report
magistrate judge’s
second-
and.
met,
considering
gov-
without
whether the
order reliance on the same research. Yet
produced
“relating]
ernment had
barely acknowledged,
these concerns are
to the individ-
addressed, in
dis-
adequately
let alone
particular
ual defendant’s
medical condi-
trict court order.
Evans,
tion.”
dant to stand TRAXLER, Judge, dissenting: Chief 242 in (emphasis original). F.3d at granted govern- The district court the involuntarily medicate petition that is ment’s to further conclude
We
his com-
inap
in order to restore
rare
in which a
is
John Watson
the
case
remand
majority
re-
permits only petency to stand trial.
propriate because “the record
order, concluding
gov-
of the factual
that
one resolution
issue”:
verses
to
this burden cannot be met. Pullman
ernment’s evidence was insufficient
Swint,
292,
plan
prove
proposed
Standard v.
456 U.S.
the
(1982); see, e.g.,
substantially likely
to render Watson
S.Ct.
L.Ed.2d
however,
Ruiz-Gaxiola,
appeal,
In
Wat-
(declining competent.
As to the issues
raised Wat-
satisfy
requirements
of the second fac-
son,
that,
I
as to
conclude
one narrow
tor,
must show that the
issue,
make the
the district
failed to
relates
However,
necessary
I
findings.
believe
to the individual
course in this circumstance
proper
defendant’s
words,
medical condition.
other
to vacate and remand for
find-
*14
additional
government, considering
par-
all of the
ings, not simply reverse the district court
ticular characteristics of the individual
outright. Accordingly,
respectfully
I
dis-
defendant relevant
such a determina-
sent.
tion, must first show that the treatment
I.
significantly
will
further its inter-
by
It
demonstrating
ests.
must do so
seeking
involuntarily
When
medicate
plan,
purpose
restoring
a defendant for the
of
defendant,
applied
to this
trial,
competency
govern-
his
to stand
substantially likely to render the defen-
ment must establish four factors
clear
trial
competent
dant
to stand
and sub-
and
evidence. See Sell v. Unit-
stantially unlikely
produce
side effects
States,
166, 180-81,
ed
539 U.S.
123 S.Ct.
significant
so
as to interfere with the
2174,
(2003);
431 Hilkey, psychologist States v. a who clear error review. See United served as Wat- Cir.2010). (4th 401, White, expert 410 son’s witness. error, course, very is a deferen- Clear A. reviewing “A court for clear tial standard. Dr. Lucking report submitted a detail- a court’s find- may error not reverse lower ing his views and testified at the two Sell ing simply of fact because would have hearings conducted magistrate Rather, differently. decided the case a judge. report, Lucking diagnosed his whether, court must ask on the reviewing suffering Watson as from delusional disor- evidence, entire it is left with the definite (or der, paranoid persecutory) type a and firm conviction that mistake has thought “substantial disorder.” J.A. 357. been committed.” United States v. Wood- Lucking described the nature of delusional (4th Cir.2012) (inter- en, 440, F.3d disorder opinion and stated his Wat- quotation nal marks and alteration omit- incompetent son was to stand trial because ted). “If the district court’s account of the “paranoid prevented his delusional beliefs” plausible light of the record evidence is “understanding] from nature entirety, the court of appeals
viewed its consequences the proceedings may though not reverse it even convinced against hipa” prevented him from as- fact, sitting that had it been as the trier of sisting attorney. J.A. 360. Luck- weighed it would have the evidence differ- ing opinion that stated his there was a ently.” City Anderson v. Bessemer probability “substantial Mr. Watson’s com- 564, 573-74, City, 470 105 S.Ct. U.S. petency can through be restored” treat- (1985). L.Ed.2d 518 “In cases which antipsychotic ment with an medication. findings a district court’s factual turn on J.A. 376. credibility assessments of witness or the Lucking explained antipsychotic weighing conflicting during competency medications can restore the trial, findings such are entitled to bench illnesses, those active greater even deference.” Helton v. AT & supporting he summarized various studies (4th Cir.2013). T, Inc., general principle. As to delusional specifically, Lucking disorder more noted II. report “[p]ast opinion in his *15 ap- the fact-bound nature of this treatment of delusional disorder with anti- Given primary psychotic pessimistic. I will The peal, first summarize was only a prevailing opinion evidence before the district court: the re- was fraction disorder port testimony Lucking, of Dr. Rоbert of individuals with delusional (approximate- expert respond witness and staff would to treatment 10%).” added). ly (emphasis psychiatrist at the Federal Medical Center J.A. Butner, Carolina, however, facility Lucking explained, North “more housed; study by By- significantly recent literature indicates where Watson (the rate,” response ron L. Herbel and Hans Stelmach better J.A. and he studies, Study”)1 upon that was relied summarized those more recent “Herbel Dr. included several with rates of suc- Lucking; report and the James which Stelmach, (2007). Study Byron was submit- 1. See L. Herbel & Hans In- L. 47 The Herbel voluntary Competen- Medication Treatment part of ted to the district court as Watson's for cy Restoration With Delu- government’s petition. opposition to the Defendants Disorder, Psychiatry & sional 35 J. Am. Acad. underlying disease that (ie., re- had no partial fall or Watson eessful treatment treatment of preclude the standard exceeding 75%. would symptoms)2 mission of susceptible him any effects or make there are “no side acknowledged that Lucking effects; risperidone or non- side placebo-controlled double-blind any of the other not with trials in the lit- would placebo-controlled blinded interact Watson; prescribed medications to the treatment of delu- erature related disorder,” “underlying had no medical that the more recent that Watson sional studies, preclude would illness or conditions which case which literature involved antipsychotic the use of or be worsened evidence than yield quality” “lower medication.” J.A. 375. through placebo-con- obtained These shortcom- trolled trials. J.A. 372. no Lucking explained that report, In the notwithstanding, Lucking believed ings likely to treatments less-intrusive were studies “indicate delusional more recent same results as treatment with achieve the effectively treated with an- disorder can be acknowledging that risperidone. While medication.” J.A. 374. tipsychotic can beneficial as an ad- psychotherapy junct antipsychotics, to treatment with the difference be- report explained The that there is “no evidence Lucking anti- noted second-generation tween first- techniquеs alone psychotherapeutic noted that second- psychotic drugs and for treatment are effective alternatives antipsychotics “are considered generation (em- antipsychotic agents.” with J.A. 375 psychotic line treatment for to be the first added). phasis Lucking also indicated that conditions due to less onerous side [their] report therapy dis- would not succeed this case profile.” effect J.A. 376. does not understand that antipsychotic cussed the three medications because Watson illness, involuntarily he has a mental does not believe he that could be administered treatment, participate risperidone and noted that is the sec- needs and would any therapy. that could in form of ond-generation antipsychotic involuntarily. administered practicably be During hearings held before the Sell report stated in the that Watson magistrate judge, Lucking testified about hospital had admitted to a previously been report the matters set out in his and reit- D.C., Washington, where he was treated erated his views that delusional risperidone. Lucking with inferred from incompetent disorder rendered him the fact that was released from the trial and that treatment with an stand positively to the hospital responded that he substantially antipsychotic medication drug, and his treatment for Watson likely to restore Watson’s risperidone. recommended the use of Lucking also testified that he had treated Lucking’s report approximately stated that treatment basis” “[o]n ten anti- antipsychotic produce with an would not delusional-disorder medication, all of them success- side effects would with Wat- interfere *16 ability attorney; fully.3 Lucking’s testimony to assist his J.A. 32. also son’s Lucking explained generally psy- competency.” 2. that "it is suit in a restoration of J.A. symptoms which render an individual chotic incompetent,” and that "the fewer Lucking's majority questions 3. The whether symptoms present, and the intense the less testimony patients establishes that the ten symptoms, likely the more that individual is view, involuntarily. my were treated In it Therefore, competent. partial to be even a (“Q. many clearly See J.A. does. How response antipsychotic medication can re- suffering patients from delusional disorder position expressed incompetent Watson was to stand tri- elaborated on al. therapy helpful would not be report that be- Lucking explained
for Watson. Hilkey’s report confirmed that Watson thought disorders and delusions re- cause previously had been treated risperi- with antipsychotic medi- spond positively to during stay. an inpatient hospital done by therapy, he helped cations but are not hospital by Hilkey records reviewed effective therapy did not believe would be noted Watson had adverse reaction to stand competency to restore Watson’s lithium higher dosages but mentioned trial. risperidone. no adverse reaction to the report recom- Although Lucking’s Watson,, however, Hilkey told that he was had risperidone mended because Watson antipsy- “terrified” of the side effects of appar- been treated with it and previously chotic and that he had medications “severe it, Lucking ently responded positively to single risperidone reactions” to the dose hearing at the that he would rec- testified he took under order. J.A. 381. risperidone even if Watson had ommend view, Hilkey’s Watson’s fears about the drug. taken the As ex- never conspirato- medication “interfaced with his plained, system.” rial belief Id. chosen risperidone reason the was [t]he antipsychotics, As to treatment with The fact very is because we are limited. Hilkey “pharmacological stated that treat- frac- that he had received it before is a ment Delusional Disorders less effi- [is] choosing tion of the reason for that med- typical psychotic cacious than with disor- chosen, one, ication. That medication is Schizophrenia.” Hilkey such der[s] Id. appropriate because it’s to treat his de- controlled, noted the “paucity of double- disorder; two, lusional the side effects blind studies on treatment of individuals are more tolerable than ones from the disorders,” id., with delusional and ob- effective; the medicine is generation; 1st “existing served that studies” show lot, get good I it a I [a] use type of the delusional persecutory it. The fact that he had response [to] to treat- disorder is the most resistant not the reason I chose been on is main ment, J.A. 382. plan. it for the treatment Hilkey question had “some about the 64-65; I (“[Clinically, see also J.A. 76 J.A. efficacy pharmacological treatment with [risperidone] believe is the best choice for Watson,” 383, noting that “[t]he Mr. J.A. point treatment at this in time for Mr. chronic nature of Mr. Watson’s illness Watson.”). fixed, well established nature of his B. thoughts response make to treat- aberrant psychological) ment Hilkey, expert (pharmacological Dr. wit- James However, ness, change,” J.A. 383. prepared report interviewing after resistant nearly Hilkey directly opinion stated an on ten hours over never Hilkey likely success of the treatment separate course of four interviews. by Lucking. Hilkey instead fo- suffering from agreed that Watson disorder, “[s]upportive thera- type, and cused on the need for persecutory delusional antipsychotic probably around ten you medi- often. So somewhere have treated basis, my the course of career here A. On an it’s not a over cation? antipsychotics.” (emphasis *17 many a I've treated with lot of them because of them—it's added)). very you don't see rather rare disorder studied, sixteen of twenty-two to an ef- Of the cases “has been shown py,” which from delusional disor- Hilkey patients suffered 382. As fective treatment.” J.A. der, had persecutory type; one delusional explained, disorder, grandiose type; and five were therapy general goals supportive [t]he grandiose type. persecutory mixed facilitate the treatment adherence are to Overall, twenty-two pa- of the seventeen alliance, to develop therapeutic (77%) reported restored to tients were disorder, to provide education about competency. patients And of the sixteen (i.e. talking social skills improve disorder, diagnosed perse- with delusional systems in social delusional about (69%) reported were cutory type, eleven manage behaviorаl and places) and to competency. pa- restored to Of the five associated with psychological problems competen- not restored to tients who were process; This is a slow the delusions. cy, type one was mixed and the other four supportive type failure to offer persecutory type. were aggressive in lieu of more only the established therapy reinforces The information reviewed was sufficient delu- persecutory fears that characterize in nineteen cases for the authors of Study long sional disorders. Herbel to determine how be- symptoms begun. fore treatment had (footnote omitted). J.A. 382-83 Given symptoms present The had been for five “strongly report- held beliefs and years patients, or less for nine seven of personal experiences psychotropic ed whom were restored to Six to pronounced medications include fears of patients symptoms had had for seven to death,” Hilkey “any believed that treat- years, patients ten and all six of those approach pharmacological ment be it to competency. were restored Of the four in a psychological support- must be offered patients symptomatic who were for a much ive manner designed mitigate the fears (thirteen twenty- longer period time of the being individual treated. Failure years), only four one was restored to com- compassionately address these fears petency.4 persecution.” contributes to fears of J.A. view, study reported In Hilkey’s Watson’s relation- seven ship attorneys ability competency with his were restored to within six showed his treatment, beginning to form weeks of but that the degree “therapeutic some succeed, competen- other ten who were restored to required therapy alliance” cy signs improvement did not shows Hilkey “strongly sup- believed” that undergoing until at least three months of portive therapy “could increase the likeli- treatment, continuous and that some of the competency sufficiently hood his could be patients required five months of treatment restored.” J.A. 384. regaining competency. before The au- C. thors thus recommended treatment trials n months, Study reported findings The Herbel of at least four noted many previous from an evaluation of the case significant- files studies involved twenty-two involuntarily ly men medication trials. au- medicated shorter FMC-Butner, view, facility the same where thors’ the too-short duration of medi- previous Watson is housed and Dr. works. cation in the provided studies April 4. The evidence in the record establishes that court issued its order suffering suffering Watson had been from delusions had been from the disorder for five Thus, years. since 2008 or 2009. when the district to six *18 may the incorrect of the forensic examiners have been explanation” for “plausible in patients finding positive biased favor of a re- wisdom that these “conventional antipsy- sponse to treatment. refractory to treatment with are 147; see also J.A. chotic medication.” J.A. authors, however, J.A. 149-50. The also “empirically unsupport- (describing pointed strength study: out a of the psychi- in forensic opinion asserted ed” in patient [T]he cohort was selected a “Delusional Disorder atric literature that prosecu- real-world manner criminal resistant”). notoriously treatment tion, they after which were assessed and experts that some The authors noted involuntarily treated in a real-world patients expressed have concern manner at a forensic facil- mental health a whose core delusion involves belief that main ity. study contribution of this they governmental are victims of a con- was the observation treatment re- of likely respond were not to to spiracy sponse patients with delusional dis- “ ‘precisely because the forced medication who, pro- order in contrast to the usual ” the medication.’ government administers studies, community tocols in research Evans, (quoting J.A. 149 United States not permitted drop were to out treat- (4th Cir.2005)). 227, 241 As to 17 patients ment. That 10 of the who studied, twenty-two sixteen had cases responded required to treatment contin- governmental persecution, delusions at antipsychotic uous treatment for least (65%) to of whom were restored eleven mоnths, and up three some to five patients the five who were competency; months, unexpected. was This result competency to all had such not restored provides plausible explanation for the data, the au- light delusions. of that refractory presumed nature of delusion- that “the of delu- presence thors concluded symptoms. al disorder The real obsta- involving persecution sions themes of positive response cle to a treatment implementing that is the same in- may delusional disorder not be the appear does not to illness, biological trinsic features predictor nonresponse be a useful may the difficulties in but instead be treatment.” J.A. 149. these to adhere to an adequate trial of medication. study
The authors noted that their added). inherent subject to the “usual limitations” (emphasis J.A. 150 review,” “retrospective inpatient chart III. clinical including the “lack of standardized rating diag- assessments with scales and considering govern- whether the When instruments, as well as lack of inter- nostic ment’s was “sub- reliability rater studies.” Id. Because of stantially likely to render the defendant limitations, Sell, those trial,” 539 U.S. at competent stand 2174, the district court con- patients may misdiag- have been 123 S.Ct. some Hilkey strongly recom- cluded that Dr. wrongly nosed included excluded that he study population. supportive therapy mended but from this Standard bias, opined such as never that medication alone would research methods reduce ap- On assigned random assortment treat- restore Watson’s contends that the district groups, placebo peal, ment the use of a con- analysis clearly errone- meas- court’s reflects group, trol and blinded outcome ures, Hilkey’s testimony. study. understanding ous possible were not (“[T]he , Appellant district safeguards, opinions these See Brief Without *19 Anderson, by misunderstanding clearly district court’s decision. See err[ed] 573-74, 1504; expert defense about 470 U.S. 105 S.Ct. United opinion the of the (4th 535, treatment.”); Springer, States v. 715 F.3d 545 necessity of holistic id. the Cir.2013); Racing, see also (“The VICI LLC district court’s misunderstand- at 25 (3d USA, Inc., 273, T-Mobile 763 F.3d 283 Hilkey’s conclusions ing of Dr. constitutes Cir.2014) (“A finding clearly of fact is erro- error.”). Acknowlеdging Hilkey that clear completely neous when it is devoid of mini- directly stated that the never evidentiary support displaying mum some work, not would Watson credibility hue of or bears no rational rela- Hilkey’s report contends that when is con- tionship supportive evidentiary to the entirety, meaning in its its is clear: sidered (internal omitted)). quotation data.” marks Hilkey disagree “Dr. does not with Dr. A challenge sufficiency of the district Lucking that Mr. Watson should be medi- evidence, court’s distillation of the howev- contrary, Hilkey agrees the Dr. cated. To er, asks whether the district court as fact- is-necessary, that medication but it must properly “synthesize[d] finder the evidence supportive therapy be combined with in a manner that conflicting accounts for order to successful.” Brief of Appel- be gaps evidence the in a party’s or evidentia- argues lant at 24. thus the dis- Watson ry presentation.” Menefee, Doe v. 391 clearly by misinterpreting trict court erred (2d Cir.2004) (Sotomayor, F.3d Hilkey’s report by requiring the Judge); Circuit accord Miller v. Mercy government provide supportive therapy Inc., (4th Hosp., Cir. part plan. of the treatment 1983) (explaining may that clear error Rather than focusing on the need for found findings where “the under review however, supportive therapy, majority the ... were made without properly taking reverses the district court’s order after into account substantial evidence to the concluding government’s that the contrary”). An insufficient distillation of insufficiently him- related-to Watson the evidence is an error that can be cor- condition, self and his medical court, rected the through district government’s and that the “generalized” order on remand considers all evi- carry evidence was insufficient to its bur- dence and properly contrary accounts for proof Majority den of under Op. Sell. See evidence, by evidence. Insufficient con- (“[T]he at 419 government has not met its trast, cannot be corrected the district proving burden of medi- insufficient, court—insufficient evidence is cation substantially likely is to restore regardless thoroughness of the of the or- competency....”); Watson’s id. at 425 der evaluating it. (“Pеrmitting the to meet its case, simply Watson does not through burden generalized evidence alone challenge sufficiency govern- of the effectively would prevail allow to in ev- argue ment’s evidence. does not Watson ery involving case the same condition or evidence, on appeal government’s treatment.”). course of alone, standing satisfy was insufficient to
A challenge to the
sufficiency
overall
requirements,
the Sell
nor
he
does
contend
evidence, however,
very
is
different
evidence was not
challenge
from a
sufficiency
sufficiently individualized to him and his
district
Instead,
court’s distillation of the evidence.
condition.
by arguing that
challenge
A
sufficiency
of the evi- district court
to grasp
import
failed
any
dence asks whether
plausible Hilkey’s
there is
report,
challenging only
view of the
supports
evidence that
synthesis
district court’s
of the evi-
States,
low.”); Scott v. United
dence,
of the evidence.
not the existence
(4th Cir.2003) (“We
are,
course,
Hilkey’s
Indeed,
argument
any ground appearing
entitled to affirm on
the need for medication
report establishes
record, including
in the
theories not relied
effectively con-
supportive therapy
court.”).
rejected by
upon
district
record contains evidence
cedes
reversing
it comes to
When
district
com-
to establish that Watson’s
sufficient
order, however,
court’s
our discretion is
restored.
petency can be
*20
general
much more constrained. As a
Thus,
acknowledging what
is
without
rule,
this court
not consider non-
does
disregards
argu-
the
doing,
majority
the
jurisdictional
properly
issues that are not
actually
by
made
and re-
ment
Watson
brief,
presented
appellant’s opening
in an
entirely different
appeal
solves the
on an
see,
Holder,
e.g.,
v.
Suarez-Valenzuela
714
entirely
an
different kind of
involving
basis
(4th
241,
Cir.2013),
F.3d
248-49
much less
carry
government’s failure to
error —the
appellant
issues that
the
never even at-
than the district
proof,
burden of
rather
its
power
to raise.
we
the
tempts
While
have
properly synthesize
the
court’s failure
appel-
to address issues not raised
the
Moreover, by reversing
evidence.5
thе
Hand,
lant,
A Helping
see
LLC v. Balti-
remanding,
court’s order without
district
(4th
356,
Cnty.,
more
369
Cir.
majority
granting
is
relief that no one
the
2008),
power
we do not exercise that
does not seek a
sought,
has
as Watson
civil cases unless the issue “establishes
reversal,
this court to
but
instead asks
error or a denial of funda-
fundamental
proceed-
vacate and remand for further
Seal,
justice,”
mental
In re
Under
ings.6
(4th Cir.2014) (internal
276,
F.3d
285-86
omitted).7
quotation marks
may
It
this court
is well-settled
any
a district court’s order on
basis
majority
that the
does not contend
affirm
See,
appearing
e.g.,
in the record.
Blum
error it identifies rises to the level of
Bacon,
132,
5,
error,
n.
102 S.Ct.
457 U.S.
fundamental
nor does it otherwise
(1982) (“[A]n
appellee
attempt
explain why
agree.
IV.
*21
Lucking
in
report
While
did note
his
that “there
in
support
is extensive
above,
As discussed
I do not believe the
psychiatric literature that individuals with
sufficiency-of-the-evidence
question
is
diagnosis
psychotic
of a
illness obtain
were,
But if it
I
properly before us.
would
in
psychotic
substantial
reduction
their
disagree
majority’s analysis.
with the
In
symptoms
antipsychotic
when treated with
my view, the evidence before the district
medication,”
J.A.
that was not the
sufficient
support
was
the court’s
entirety
analysis
of his
when recommend-
factual determination that
ing
Lucking’s report
medication.
dis-
“substantially likely
medication was
to ren-
general,
cussed delusional
but
disorder
der the defendant competent to stand tri-
also
presented
described how the disorder
Sell,
al.”
And after all the circum- comes to stances, determined, suggestion deficiencies is its expert perceived his to connect the treating risperi- with that the evidence failed opinion, Watson substantially likely his “not [to done was to restore condition but also competence. Lucking explained, [to] As medical Watson’s] rendering age and the nature and duration of his the delusional beliefs were Majority Op. at 424. incompetent, risperidone Watson delusions.” treatment, (100%) years all of whom were restored to seven to ten before however, B. above, the evi- As recounted precisely that. record does in the dence support for its con- majority The draws addresses the evidence government’s The testimony at the Sell Lucking’s on clusion involuntary treatment of those efficacy of he have recommended hearing that would form of delusional persecutory or not whether risperidone Watson con- disorder, “medical which is Watson’s taken it. In the previously had Watson evidence, par- dition.” The view, testimony majority’s shows Study, shows success ticularly the Herbel not on recommendation Lucking’s “rested subtype of de- treating persecutory Watson, any individualized assessment and thus addresses the disorder lusional ‘antipsychotics are but on the belief Her- delusions. The “nature” of Watson’s choice for success invol- the treatment of Study likewise bel shows delu- untarily nonspecific, syllogis- treated defendants whose symptoms’ same —the long approximately as persisted sions have rejected.” reasoning previously tic we have Watson’s, addressing the “dura- thus Majority Op. at 427. illness.9 tion” of Watson’s Lucking’s risperidone recommendation majority contends that While the Lucking’s on belief that was based explicitly did not address district court incident previously had taken it without by Hilkey Dr. about questions raised and, above, an individual- as discussed on “particular persecutory whether disorder ized assessment of the medication, respond would delusions” Watson, other affecting medications by a failure the dis- Majority Op. taking, Watson was and whether Watson given trict court to address a issue cannot any underlying that would had conditions equated proof. to a failure of complicate any cause or the treatment of presented Moreover, Lucking side effects. reached for the district court to provided bases by relying his recommendation on studies conclude, despite questions raised involving patients suffering treatment of Hilkey, government’s proposed *23 specific from disorder. Luck- Watson’s substantially likely treatment ing’s recommendation was therefore based Watson’s Given the restore particular on a consideration of Watson’s showing govern- wealth of information diagnosis physical and condition. That specific ment’s consideration of Watson’s n Lucking generalized also had rea- more diagnosed psychological condition as well risperidone10 to chose does not some- sons condition, majority’s physical as his negate aspects how the individualized rejection of the analysis Lucking’s and render it insuffi- simply squared highly cannot be with our standard of deferential review. cient as a matter of law. age, govern- particular age patients
9. As to the record shows that the of a are more or less responsive antipsychotic drugs. properly reported ment and Wat- recorded age reports. son's in the relevant forms and Beyond possible age connection of to the Lucking’s report testimony 10. As estab- however, symptoms, lished, duration of there is noth- second-generation antipsychotics are ing suggesting patient’s in the record that a preferred first-generation antipsychotics over is, age is relevant to issues in case. profile, That because of their less-severe side-effect nothing suggests, example, risperidone only second-generation in the record is the prone practicably are more that older suffer medication that cam be adminis- antipsychotics, involuntarily. from the side effects of or that tered efficacy in prison which studied the
C. context of medication to re- gov- majority suggests also The competency store defendants suf- is insufficient because ernment’s evidence fering from delusional disorder. The sci- by upon literature relied the academic directly literature entific thus addresses par- on Watson’s “bear[ ] does specific prop- condition and was condition or circum- ticular medical erly by Lucking relied on district .the stances,” and because Majority Op. at Indeed, court. if these studies do not majority in perceives of “weaknesses” on particular bear Watson’s medical condi- support Lucking’s conclu- the studies tion, unlikely any it seems academic sions, disagree. I Again, at 426. id. paper literature of a short devoted entire- ly to the treatment of the actual defendant 1. question majority’s would meet unexplained “bearing” standard for on an majority, not all of the by As noted incompetent particular defendant’s medi- Lucking’s report specifi- studies cited cal condition. treatment of delusional cally address the disorder, specifically all of those and not pos- a
addressing delusional disorder show majority to treatment response itive troubling majority’s More than the claim Nonetheless, Lucking’s patients. that the academic literature does not bear studies, including several report discusses condition, however, particular on Watson’s Study, provide sup- clear the Herbel majority’s give any weight failure to antipsychotic drugs port for the use studies when determin- supportive gen- disorder the treatment of delusional sufficiency of the evidence before ing the erally specifically more in the treat- majority court. The the district concedes persecutory form of the disor- ment of the Study provides unequivo- that the Herbel der.11 government’s proposed cal for the support study gen- plan, the studies that discuss the but dismisses While efficacy finding in the treat- as “vulnerable to bias favor of antipsychotics eral may positive response Majority to treatment.” ment of illnesses not bear (alteration condition, quota-' Op. at 426 and internal on Watson’s medical omitted). majority does majority’s I am claim tion marks perplexed studies, Study, supportive the other including that the other the Herbel not mention content,” concedes, majority positive regardless the Herbel delusional J.A. 11. As the *24 added), indicating Study "unequivocally support[s] (emphasis the 372 thus involun- tary antipsychotic persecutoiy the is no less use of medication to re- the form of disorder competenсy responsive to medication. And since the rec- store the of defendants with the partial response "even a Persecutory Type of Delusional Disorder.” ord establishes that antipsychotic can result in a Majority Op. Her- at 426. In addition to the 370, competency,” J.A. the Study, Lucking’s report bel discusses a 1995 restoration recovery study’s full-or-partial rate clear- reviewing article 209 cases of delusional dis- 81% ly supports Lucking’s opinion that delusional being antipsychotics, treated with order successfully with anti- patients can be treated which determined of the disorder that 53% recovered, recovered, Lucking’s report a partially psychotics. also discusses fully 28% involving patients study eleven with de- improve. there is no 2006 did not While 20% disorder, had a com- many (cid:127)lusional ten of whom indication of how of the suf- symptoms being plete after treat- persecutory form of the disor- remission fered from the der, "[tjreatment first-generation antipsychotic. study the revealed that ed with 442 however, majority the treats plan, the unidentified ment because of
presumably
majority.
opportu-
in the evidence as an
by the
the conflict
perceived
“weaknesses”
majority
nity
factfinding.
weighs
The
majority’s treatment of these stud-
conflicting
the
scientific literature and de-
ies,
rejection of the
particularly its
Herbel
“equivocal,”
rejects
it
and then
the
clares
the limited role of
Study,
respect
fails to
sup-
equivocal evidence as insufficient to
clear-error re-
appellate
applying
an
opinion.
approach
This
is
port Lucking’s
question
view. The
in this case is
reviewing
inconsistent with our role as a
majority
persuaded
itself is
whether
court,
reweigh
“for our function is not to
on,
he relied
Dr.
and the studies
presented
the evidence
to the district
any plausible view of
but whether there is
v. Charleston Coun-
court.” United States
clearly
convincingly
the record
(4th
341,
Cir.2004);
ty, 365 F.3d
349
see
propriety
of the
establishes
Enters., LLC,
v. Motiva
Ceraso
Anderson,
plan.
470 U.S.
treatment
See
(2d Cir.2003) (“The
weight
573-74,
As noted dis- bias— Study sufficiency-of- moving the from the cussed studies that concluded that delu- above, equation. the-evidence As noted disorder, including persecutory sional Study acknowledged authors of the Herbel subtype, successfully can be treated with “[sjtandard research methods to re- medications, antipsychotic and he also dis- bias, duce such as random assortment reaching opposite cussed studies con- assigned groups, use of clusion. The court was pre- thus district placebo group, control out- blinded conflicting sented with about measures, possible” given come were not efficacy treating delusional disorder study “retrospective consisted of a medications, antipsychotic a conflict inpatient chart review.” J.A. 149-50. implicitly, that the court but nonetheless criticisms, however, These could le- undeniably, resolved in the studies, against positive velled all of the review, favor. And under our standard of addressing negative, the treatment of delu- obliged this court is to defer to the district sional disorder. As the record makes court’s resolution of the conflict. See clear, rare, very delusional disorder is Anderson, 470 U.S. at S.Ct. there are no controlled studies of the use (explaining that deference to district antipsychotic medication to treat delu- findings required court’s factual “even disorder, studies, sional case which findings when the district court’s do not yield quality” “lower evidence than do con- determinations, credibility rest on but are *25 trolled studies. physical documentary based instead on facts”). evidence or inferences from other the limitations inherent Notwithstanding literaturе, treating positive Rather than in the studies limited available'scientific supporting as evidence treat- Lucking Hilkey both Dr. and Dr. relied on Antone, government, to the see reaching when able available literature I There is no evidence F.3d at 155 n. believe that evidence is conclusions. their raising any question support about the sufficient to the district the record court’s reliance, any of that nor is there order. propriety per- that otherwise would other evidence D. reject Study the Herbel or the
mit us to Lucking’s posi- supporting other studies majority’s To the extent the real com- from consideration tion and exclude them plaint is that the evidence is sufficiency of the evi- evaluating when compelling enough not to constitute clear dence. evidence as a matter of law, again disagree. then I majority suggests support- to some evi- ive studies would be entitled Evidence crosses the clear and convinc- dentiary weight if there had been some if ing weight threshold it is “of such that it analysis applying their “explanation or produces in the mind of the trier of fact a an individual.” Ma- findings conviction, to Watson as hesitancy, firm belief or without However, all of the jority Op. at 426. allegations sought as to the truth of the to to the find- necessary apply established, and, well, information to be as evidence found in ings of these studies to Watson is proves the facts at highly issue be (in- Lucking’s report, which makes it clear probable.” Springer, 715 F.3d omitted). antipsychot- involved the use of the studies quotation ternal marks suffering to treat those ic medications view, my a factfinder could reason- disorder, including the from delusional ably Study compel- find the Herbel more the disorder. subtype of persecutory ling persuasive and its conclusions more impenetra- Lucking’s report does use questioning than the earlier studies describing the jargon scientific when ble efficacy of medication for delusional disor- studies, and the district was thus noted, previously der. As ten of the sev- Lucking’s capable reading more than Herbel-Study patients enteen restored to conclusions report drawing its own competency longеr took three months or in the about the various studies discussed medication, period signifi- respond to the Bales, See, report. e.g., United States cantly longer than the medication trials (4th Cir.1987) 1289,1293 (explain- earlier, pessimistic involved in the more ing that the district court acts as where (“That 10 of the 17 studies. See J.A. 150 factfinder, evidence, judge weighs the “the to treatment re- responded who witnesses, credibility determines the quired antipsychotic continuous may and finds the facts ... select [and] months, up for at least three and some among conflicting inferences to be drawn months, unexpected. This result five was testimony”). perhaps from the While plausible explanation for the provides helpful if had would have been refractory delusional presumed nature of ad- explicitly testified that the studies Moreover, symptoms.”). unlike disorder very affecting condition Wat- dressed the voluntary treatment for earlier studies son, grounds cannot his failure do so disorder, Study the Herbel delusional information for reversal when efficacy demonstrates the presented otherwise to the district court. subjects permitted to when the are not Because the Her- drop evidence is consid- out of treatment. When the scientific Study the success of involun- along Lucking’s report and testi- bel assessed ered circum- tary treatment administered under mony light and viewed in the most favor- *26 444 ap- not governmental persecution those at issue “does largely identical to
stances
a
of nonres-
provides
pear
predictor
a
to be
useful
in this case
reasonable
to treatment.”
J.A. 149. Because
discounting
pessimistic
ponse
the more
basis for
studies, I
the factfinder
be entitled to consider
other
believe
would
conclusions of
reasonably
Lucking’s
light
of the other
testimony
find
could
factfinder
see,
trial,
e.g., Davis
Study clearly
convincingly sup
presented
evidence
Herbel
Richmond, Fredericksburg
Potomac
position.
Unit
v.
&
government’s
ports the
Cf
(4th
Gillenwater,
Co.,
1322,
R.R.
Cir.
v.
ed States
J.)
Cir.) (O’Connor,
1986),
(9th
(finding
Study
findings
dis
of the Herbel
clearly
Lucking’s
not
err
the lack of
testi-
accepting
did
make
detail
trict
mony
significant
majority
less
than the
Lucking over defense ex
testimоny of Dr.
circumstances, I
exclusively
suggests.
on older stud
Under these
pert who “relied
ies,”
majority
improper
when
“relied on more recent
believe it is
for the
indicating
negative
Lucking’s testimony
refuse to consider
studies
older
—
mistaken”),
denied,
experience treating
about his
defendants
view was
cert.
U.S.
of its eval-
-,
part
Similarly, pro- there is in the record the record thus making plausible for the factfinder to vides a basis for the factfinder to reasonable weight Lucking’s weight govern- rec- slide extra over to the assign significant above, Lucking ment’s ommendation. As noted side of the scale and conclude that involuntarily clearly convincingly medicat- the evidence testified that he had es- suffering propriety proposed tablishes the of the approximately ed ten defendants disorder, plan. Although all of whom were there is evi- from delusional personal supporting contrary suc- dence conclusion competency. restored to His raising questions aspects as certain treating cess in the same disorder Wat- about son’s, government’s proposed plan, under the same circumstances that treated, reasonably contrary Watson would could evidence does not raise such sub- strong questions government’s stantial about the by be viewed the factfinder evi- it insufficient as a dence that the treatment evidence as render law, substantially likely simply matter of but instead creates questions of fact the fact- restore Watson’s for resolution See, e.g., Heyer, finder. United States however, the ev- majority, dismisses (4th Cir.2014) (“[Evalu- F.3d Lucking’s experience idence of because ating credibility experts and the Lucking provided no details about those opinions value of their is a function best patients and we therefore do not know how courts, committed to the district and one many of suffered from the (in- appellate to which courts must defer.” persecutory type type disorder what omitted)). I quotation ternal marks there- of medication was used. more detail While majority’s conclu- disagree fore helpful, I the lack would be do believe sion that evidence was Lucking’s expe- of detail somehow renders carry proof. insufficient to its burden irrelevant, particularly rience since the Study high response Herbel shows a rate V. patients,
for all delusional-disorder includ- ing persecutory subtype, those with the I now turn to the merits of Watson’s clearly presence argument and finds that the of delusions of the district court *27 evidence). In contradictory sup- amount of Hilkey’s report by misinterpreting erred port argument, points of his Watson to supportive therapy and the need Hilkey’s “any that treatment ap- statement to medication. addition
proach
pharmacological
psycholog-
be it
or
supportive
ical must be
in a
man-
offered
A.
designed mitigate
ner
to
the fears of the
order,
district court acknowl-
In its
(em-
being
individual
treated.”
J.A. 383
Hilkey “strongly sup-
edged that while
added).
Watson,
According
phasis
to
this
...
supportive
psy-
ported]
the use
Hilkey’s
“unequivocal[ly]”
statement
shows
alongside
pharmacological
chotherapy
“[a]ny
view that
treatment must be offered
treatments,
opine
in his
Hilkey “did
Otherwise,
supportive
in a
manner.
forc-
Lucking’s
evaluation that Dr.
forensic
just
per-
ible medication
reinforces fears of
will be unsuccessful.”
plan
treatment
at 24.
Appellant
secution.” Brief of
Citing Lucking’s report and
J.A. 340.
view,
my
Hilkey’s report
is much less
court held that the
testimony, the district
point
on this
than
con-
conclusive
Watson
was substantial-
proposed
plan
treatment
Regarding
therapy, Hil-
supportive
tends.
competent to
ly likely to render Watson
key
“[s]upportive therapy
that
has
stated
trial,
granted
court
stand
and the
to
treatment”
been shown
effective
involuntarily
to
government’s motion
disorder,
382, and that
for delusional
J.A.
requiring
medicate
without
Watson
persons
literature on treatment of
“[t]he
provide supportive
to
thera-
strongly
with delusional
encour-
[disorder]
py-
ages
supportive
cognitive
the use of
argues that the dis-
appeal,
On
Watson
psychotherapy
behavioral
for the treat-
by finding
Hilkey
that
trict court erred
Disorder,”
ment of Delusional
J.A. 384.
therapy in addi-
only suggested suppоrtive
Noting
capacity
has the
‘Watson
contends that
tion to medication. Watson
degree
therapeutic
form a
alliance
Hilkey’s
made it clear that medi-
report
so,” Hilkey
attempt
should someone
to do
supportive
cation
must be combined
“strongly
opinion”
stated his
held
therapy for the medication to succeed in
therapy “could increase
supportive
such
argues
restoring
his
competency
could be suf-
likelihood
the district court misunder-
because
added).
ficiently
(emphasis
Id.
restored.”
'
Hilkey’s report,
the district court
stood
Hilkey thought
apparent
to the While it is
gave proper
never
consideration
very important,
contradicting
supportive therapy was
Lucking’s
evidence
See,
correctly
observed that
clearly
e.g.,
and thus
erred.12
Wood-
district
en,
Hilkey
directly
pro-
clear error
never
stated that the
(finding
Although I do not believe that the dis-
supportive
obtained when
therapy is added
interpretation
trict
Hilkey’s
court’s
re-
to a
plan
or the medication-
port
clearly erroneous,
is
I nonetheless
suceеss-enhancing nature of supportive
agree with Watson that
the district
therapy. And while the district court
findings
not-
inadequate
court’s
are
to show
Lucking’s
ed
view that
properly
therapy
it
alone
considered the entire
Watson,
help
would not
range
relating
of evidence
the court
supportive
did not
therapy.
Hilkey’s
explain why
report
ambig-
While
is
therapy
determined that
supportive
uous as to whether
therapy
required
should not be
in addition to med-
required,
report
unambiguously estab-
ication.14
medication,
Lucking
affirmatively
13.
did not
therapy,
state that
but not
and because
therapy increases the likelihood that medi-
agree
did
mentally
that he was
ill
successful,
nothing
cation will be
but
in his
participate
therapy.
would not
While
report
testimony
ques-
contradicts or raises
using therapy
adjunct
as an
to medication
Hilkey’s
tions about
view.
portion
would seem to eliminate at least a
concerns, Lucking
these
did not address
therapy
testified that
alone would
respond
be ineffective because delusions
view,
my
philia,
required
the evidence of the benefits
the court was
to at least
evidence,
it,
is,
consider the
and account for
adjunctive supportive therapy
at the
otherwise.”).
concluding
when
least,
district
question
the factual
very
relevant to
court’s failure to consider relevant evi-
of whether the
medication-
determining
govern-
dence when
merely
without-therapy plan
was not
like-
substantially likely
ment’s
to suc-
Sell,
“substantially likely,”
ly,
but
539 U.S.
ceed means that the court’s factual finding
added),
(emphasis
123 S.Ct.
cannot be sustained. See United States v.
restore
Given the
Francis,
(4th Cir.2012)
nature of “an
medi-
sensitive
(“A court
clear
commits
error when it
order,
upon the ele-
cation
which trenches
findings
properly
makes
without
taking
liberty
mental individual
interest
refus-
*29
into account substantial evidence to the
the
administration of mind-
ing
invasive
(internal
contrary.”
quotation marks omit-
States v.
medication,”
United
altering
Coll.,
ted));
Mary Washington
Jiminez v.
Chatmon,
(4th
Cir.2013),
369,
F.3d
376
718
(4th Cir.1995)
369,
57
(explaining
F.3d
379
important
fully
it is
for the district court to
clearly
that district court
errs when
options
consider treatment
that maximize
“disregard^]
substantial
evidence that
the likеlihood the treatment will succeed.
contrary
would militate a conclusion
to
case,
disagree-
where there is
And
this
reached”).
that
ment over the medication-success-rates
literature,
the limited available scientific
B.
agreement among
expert
but
the
witnesses
I turn
question
remedy.
now to the
adjunctive
can
treat-
therapy
increase
majority, finding
government’s
The
the
ev-
especially
ment
it seems
im-
compliance,
insufficient,
idence
reverses the district
give explic-
for the district court to
portant
remanding
court’s order without
for addi-
adjunctive
it consideration to the value of
I
proceedings.
explained,
tional
As
have
(“The
therapy.
Study,
Herbel
J.A. 150
Cf
however,
sufficiency
govern-
the
of the
positive
to
re-
real obstacle
properly
ment’s evidence is not
before this
may
sponse
delusional disorder
not be
Instead,
only
properly
court.
the
issue
ill-
biological
the intrinsic
features of the
before this court is whether the district
ness,
may
but
the difficulties in
instead be
findings
court’s
are sufficient to
factual
these
to adhere to an support
substantially-likely-to-
the court’s
medication.”).
trial
adequate
succeed conclusion.
suggest
While I do not
that the district
by
turns on an error
appeal
When
required
adjunctive
court
to order
court,
remedy
the proper
the district
therapy,
at
supportive
the court was
least
normally
would
be to vacate the district
required
acknowledge
to
the evidence es-
for further pro-
court’s order and remand
Chatmon,
See
tablishing its benefits.
718
court
ceedings,
give
so as to
the district
(“Of course,
at
a district court
F.3d
issue;
opportunity
to reconsider the
need not credit a defendant’s evidence or
only in unusual cases would this court
findings
accept
arguments,
but
its
identify-
judgment
party
render
for
after
not.”);
itwhy
should offer some reason
did
See
court.
ing an error
the district
Wooden,
Swint,
(“Although
remand is course unless the trict court reconsider the make issue and permits only record one resolution of the findings necessary support ulti- its issue”); Thomp- factual aaiPharma Inc. mate conclusion. (4th Cir.2002) (not- son, VI. court,
ing, finding error district after “[ojrdinarily, proper above, course would For reasons set out I believe judgment to vacate the district court’s be sufficiency remand,” concluding “spe- but properly evidence is not before this put cial us to circumstances allow aside and that improper majority it is for the procedural court’s error district and reverse the district court on an issue the on the (emphasis render decision merits” majority sponte. has raised sua ma- added)); Chatmon, generally see 718 F.3d jority’s particularly inappropri- reversal (“Because at 376 the district court erred in government ate since the op- has no had analysis factor, its the third we Sell portunity to brief the issue or defend vacate the medication order sufficiency its evidence before court. this further findings.”); remand for Wood- Indeed, counsel will en, (vacating and remand- surely surprised by the outright rever- ing identifying for reconsideration after case, given sal relief *30 deficiencies in numerous court’s district sought appellant the by vacating was the findings). factual remanding for of the reconsideration Nonetheless, district ease, court’s order. even if the record is not so one- sufficiency the of the evidence prop- sided that renders the were court’s district erly us, harmless, before I error nor believe that the any is there other is more than sufficient bypass appellate reason to the usual to survive remand route.15 review. Accordingly, because I And as to the actually believe that the issues Watson,16 error in this case is raised I the district would vacate the court’s failure to address district the issue of ad- order and court’s for re- remand junctive supportive I therapy, would va- consideration and additional findings by cate district court’s order and remand the district court on the necessity of ad- for proceedings рermit further junctive dis- therapy. view, majority’s inap- plement In the "remand record in a manner consistent
15.
propriate
permits only
opinion”).
because the record
one
with this
of the factual issue:
resolution
that this bur-
Op.
den cannot
Majority
be met.”
at 429
challenges
also
Watson
district court’s
(internal
omitted).
quotation marks
For the
factor,
analysis
requires
of the first Sell
which
discussed,
previously
strongly
reasons
I
dis-
important
to show that
inter-
agree
majority’s
with the
of
assessment
ests are at
mitigated by
stake that are not
Even if the evidence
record.
were insuffi-
special circumstances.
See Sell v. United
cient, however, this court
States,
in such circum-
U.S.
123 S.Ct.
previously
has
stances
rather than
(2003).
remanded
L.Ed.2d
that he
contends
Bush,
(find-
See
reversed.
Department of Health And Human Services; Department United States of Labor; Department United States Treasury, Defendants-Appellants. Beaumont; Diocese of Catholic Catho- UNIVERSI- EAST TEXAS BAPTIST Texas, lic In- Charities Southeast TY; Baptist University, Houston corporated, Plaintiffs-Appellees, Plaintiffs-Appellees, v. Theological Seminary, Westminster Plaintiff-Appellee, Intervenor Sylvia Burwell, Mathews in her official Secretary capacity as of the United Department of and Hu- States Health BURWELL, Sylvia Mathews in her offi- Services; Perez, man Thomas in his Secretary capacity cial as of the Unit- capacity Secretary official as Department of Health and ed States Department Labor; Services; Perez, United States Human Thomas Lew, capacity Secretary capacity his official as Jacob J. his official Secretary Department the United States of La- as of the United De- States bor; Lew, Treasury; partment J. in his official ca- Jacob United States pacity Secretary of the Department United of Health and Human *31 Treasury; Department States of Unit- Services; Department United States of Department ed of Health and States Labor; Department United States Services; Human De- United States Treasury, Defendants-Appellants. partment Labor; De- United States Charities, Diocese Of
partment Treasury, Defendants-Ap- Catholic Worth, Incorporated, pellants. Fort Plaintiff-Appellee, University Dallas, Plaintiff-Appellee, v. .v Sylvia Burwell, in her official Mathews Sylvia Burwell, Mathews in her official capacity Secretary as of the U.S. De- capacity Secretary of the United partment of Health and Human Ser- Department of Health and Hu States vices; Perez, Thomas his official Services; Perez, man Thomas defense, establishing suggesting mately insanity or even that the delu- succeed on prevented recognizing possibility establishing sions Watson from that the mere substantially wrongfulness United did not undermine the of his actions. See States defense (8th Cir.2013) Mackey, government’s strong prosecuting interest Evans, ("That Mackey was delusional at the time of Watson. United States v. Cf. .227, (4th Cir.2005) necessarily (explaining that his arrest does not mean that he 239-40 defense.”). insanity “unlikely future civil could mount successful confinement” unimportant "make I see no error in the district court's conclu- defendant does not pos- prosecuting de- [the Government’s interest in sion the record established him”). charges sibility against that Watson would assert and un- on the serious fendant]