Argued and Submitted: December 4, 2013.
CC 120833467. Original proceeding in mandamus.[*]
State v. Lopes, 354 Or. 63, 308 P.3d 207, (2013)
Peremptory writ of mandamus to issue.
Laura Graser, Portland, argued the cause and filed the brief for defendant-relator.
Leigh A. Salmon, Assistant Attorney General, Salem, argued the cause and filed the brief for plaintiff-adverse party. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Erin C. Lagesen, Assistant Attorney General, Salem, filed a brief for amicus curiae Oregon Health Authority. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Julia E. Markley, Perkins Coie LLP, Portland, filed a brief for amicus curiae The American Civil Liberties Union of Oregon, Inc. With her on the brief were Kristina J. Holm and Joanna T. Perini.
[355 Or. 74] WALTERS, J.
Relator seeks a peremptory writ of mandamus directing the Multnomah County Circuit Court to vacate an order authorizing the involuntary administration of medication for the purpose of restoring relator's trial competence. For the reasons that follow, we conclude that, although trial courts have statutory authority to enter such orders, the order that the trial court entered in this case did not comport with the due process requirements of the federal constitution as articulated in Sell v. United States, 539 U.S. 166, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003). Accordingly, we issue the writ.
The uncontested facts are as follows. Relator was arrested on August 16, 2012, and charged with attempted sex abuse in the first degree. ORS 163.427(1)(a)(A). The indictment alleges that relator attempted to subject a person under 14 to sexual contact by attempting to touch a sexual or intimate part
of her body. Attempted sex abuse in the first degree is a class C felony.
Relator remained in jail pending trial, but, on October 4, 2012, the court found reason to doubt relator's fitness to proceed and, after an evaluation, found relator unable to aid and assist in his defense. On November 19, 2012, the court committed relator to the Oregon State Hospital (hospital) to be treated until fit.
On January 2, 2013, the hospital sent the trial court a letter stating that there was no substantial probability that relator would gain or regain the ability to stand trial in the foreseeable future. In the accompanying report, the evaluator specifically stated that " [w]ithout an ability to provide psychiatric medication interventions there is no substantial probability that [relator] will regain the ability to proceed within the foreseeable future." (Emphasis added.) Relator was discharged from the hospital and returned to jail.
The court ordered that relator be returned to the hospital for further evaluation; the hospital again informed the court that " the unfortunate reality [is] that we cannot medicate him against his will [because] he does not have an immediate problem with violence or grave disability related to his own self-care."
[355 Or. 75] On February 11, 2013, relator moved to dismiss the charges against him. The court denied the motion " without prejudice." On March 27, 2013, the hospital sent another letter to the court reiterating that there was no substantial probability that relator would regain competency because relator " refuses to take psychotropic medication."
A hearing was set on relator's motion to dismiss. During the hearing, the trial court focused on two issues: first, whether the court had authority to order that relator be involuntarily medicated; and, second, if the court had that authority, whether the state had proved that an order requiring involuntary medication would comport with the constitutional limitations articulated in Sell .
As to the first issue, the trial court considered memoranda and arguments presented by both parties and concluded that it had authority to order that relator be involuntarily medicated. The court then heard testimony on the factors required to support an order under Sell . Relator's treating psychiatrist testified that there was a substantial likelihood that medication could help relator aid and assist and that administration of antipsychotic medication was medically appropriate. On June 3, 2013, the court entered an order, which we will refer to as the Sell order, including the following findings and reaching the following conclusions:
" 5. [Relator] is charged with a serious crime against a person or a serious crime against property. (The facts of the individual case must be taken into consideration and outlined in making this determination.) The facts are outlined in the State's Probable Cause Affidavit and incorporated herein, as Exhibit 1.
" 6. Administration of the medication to [relator] is substantially likely to render [relator] competent to stand trial.
" 7. The medication to be administered is substantially unlikely to have side effects that will interfere significantly with [relator]'s ability to assist counsel in conducting a trial defense.
" 8. Any alternative, less intrusive treatments are unlikely to achieve substantially the same results.
" 9. There are no less intrusive means for administering the medication.
[355 Or. 76] " 10. Administration of the medication to [relator] is medically appropriate, i.e., in [relator]'s best medical interest in light of his medical condition.
" 11. There are important governmental interests at stake in bringing [relator] to trial, and the involuntary administration of the proposed medication will significantly further those state interests and are necessary to further those interests."
(Emphasis in original; bold face deleted.) The trial court also ordered that relator be medicated in accordance with a list of medications and dosages approved by relator's psychiatrist.
At relator's request, the trial court immediately entered a stay of the Sell order to permit relator to challenge it in this court.
Relator then petitioned this court for a writ of mandamus directing the trial court to vacate the Sell order. This court stayed the trial court's order and issued an alternative writ of mandamus directing the trial court either to vacate the Sell order or to show cause for not doing so.
This case presents two distinct questions:
1. Do Oregon trial courts have authority to issue orders authorizing hospitals to involuntarily medicate patients for the purpose of restoring trial competency?
2. If trial courts do have that authority, did the trial court's order in this case comport with the due process requirements of the federal constitution as articulated in Sell ?
TRIAL COURT AUTHORITY TO ISSUE SELL ORDERS
With regard to the first question, relator argues that Sell assumes, but does not grant, judicial authority to issue Sell orders, and that, without explicit statutory authorization, trial courts lack that power. Moreover, relator contends, hospital patients have a statutory right to refuse antipsychotic medication, and ...