AGO 97064.

• Court: Nebraska

Nebraska Attorney General Opinions 1997. AGO 97064. DATE: December 22, 1997SUBJECT: Involuntary Antipsychotic Medication Hearings REQUESTED BY: Harold W. Clarke, Director, Nebraska Department of Correctional ServicesWRITTEN BY: Don Stenberg, Attorney General Terri M. Weeks, Assistant Attorney General You have asked for an opinion regarding the Department's procedures concerning involuntary medication hearings involving mentally ill inmates. Your specific questions were: 1) What is the nature of the Fourteenth Amendment due process interest of an inmate in not being medicated involuntarily? 2) What procedural mechanism does the Department need to follow before entering an order to allow involuntary medication? a) Does the hearing officer need medical/ psychiatric training? b) What must be established in order to enter such an order? c) What responsibility does the Department have to ensure that the inmate's interests are represented? i) Is the responsibility different if the inmate is not able to respond or understand that a hearing is being held? d) Is an administrative appeal required? All of your questions are addressed below. Question I: What is the nature of the Fourteenth Amendment due process interest of an inmate in not being medicated involuntarily? In Washington v. Harper, 494 U.S. 210 (1990), the Supreme Court held that inmates possess "a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs under the Due Process Clause of the Fourteenth Amendment." 494 U.S. 221- 222. The right to be free of medication must be balanced, however, against the state's duty to treat mentally ill inmates and run a safe prison. United States v. Watson, 893 F.2d 970, 977-78 (8th Cir.), cert. denied, 497 U.S. 1006 (1990); Ashby v. Schneck, 61 F.3d 908 (8th Cir. 1995). Therefore, the Due Process Clause permits the state to treat a prison inmate who has a serious mental illness with antipsychotic drugs against his will, if the inmate is dangerous to himself or others and the treatment is in the inmate's medical interest. Harper, 494 U.S. at 227. In Harper, an inmate challenged his involuntary treatment with psychotropic drugs over a period of some three and one-half years while incarcerated at Washington's Special Offender Center. The Court addressed the questions of whether inmates have a liberty interest in...