by Kim Mosolf
Attorney, AVID Program
When the AVID Jail Project first began regularly visiting King County Correctional Facility (KCCF) last year, we had no idea that the jail was forcibly medicating some inmates. Then, one day while doing rounds in solitary confinement, we met Dwayne Stelivan. Mr. Stelivan spoke calmly and clearly about his mental health history and his experiences both inside and outside of jail. On the outside, he worked regularly with a doctor to make decisions about his treatment, including whether to take antipsychotic medications. But at KCCF, he told us, the decision was made for him.
When Mr. Stelivan asked me to be present during a forced medication hearing at the jail, I agreed. As an attorney, I thought I knew what a hearing looked like. I was surprised when I found jail health staff standing informally outside Mr. Stelivan’s cell as he squatted down to talk through a thin slot in the metal door. Sensitive, confidential information about Mr. Stelivan’s mental health echoed around us as other inmates looked on and listened from mere feet away. We discussed the issues in no particular order for about ten minutes—the jail presented no witnesses or evidence for examination—and that was it.
Much of what I observed that day, and in the numerous inmate records we reviewed as part of our subsequent investigation, was troubling. No confidentiality. No notification to the criminal defense attorney. No one to help the inmate identify evidence or make arguments. Witnesses appearing via cell phone. And never any mention of outside judicial review. When we shared these concerns with other attorneys and advocates, most did not know that the jail was even doing these hearings and many expressed bewilderment and doubt about their legality.
Our society has decided that we have a fundamental right to control the medical treatment we receive, including whether to take powerful antipsychotic medication. It is only under very limited circumstances, and after careful weighing of the evidence, that this fundamental right can be overruled. When the entity that wants to forcibly medicate is the very same entity conducting the hearing, adherence to due process is a critical safeguard. It is even more important when the decision involves a pre-trial detainee—someone presumed innocent and often held in jail only because he or she cannot afford even the lowest bail. If KCCF wants its forced medication process to consider all interests and respect due process rights, then the jail should have no objection to the following:
- Notify criminal defense counsel. Even though the inmate cannot have an attorney represent them at the hearing, the results of the hearing can profoundly influence a criminal case. Notification poses little to no cost to the jail;
- Provide an advocate for the inmate who can help meaningfully present the inmate’s position and has sufficient background to challenge psychiatric recommendations;
- Hold hearings in a setting that promotes confidentiality and respect. Almost everyone, including inmates and staff, behaves differently in a courtroom-like setting; and
- Ensure the inmate understands and has access to outside court review.
These changes will help ensure awareness and understanding of a complicated issue that implicates our most basic of rights: the right to control our mind and body. The AVID Jail Project continues to press the jail for these changes.
AVID staff found that the jail was failing to fulfill due process requirements meant to protect inmates from being unlawfully forced to take antipsychotic medication. These medications have serious side effects and can significantly affect an inmate’s presentation in criminal proceedings.
After publicizing these findings, jail health staff made significant improvements to their policies and practices. For example, the hearings held to decide whether to forcibly medicate an inmate were happening at an inmate’s cell front, meaning that other inmates and jail staff could easily hear discussion of confidential and sensitive health information. The vast majority of hearings are now held in a space that ensures privacy.
AVID was also concerned about the performance of the “lay advocate,” a person appointed to the inmate to help them present their arguments at forced medication hearings. Very often, this advocate was not participating in the hearings, leaving the inmate entirely on their own against three jail health staff members who wanted to medicate them. The jail has since created a detailed policy outlining the role of the lay advocate and their participation in the hearings has improved.
Finally, the jail is now providing official notification to inmates about their right to appeal a decision to a court for review. Before AVID’s investigation, most inmates we spoke to had no idea of their right to appeal a decision to force antipsychotic medications.
Disability Rights Washington is the designated protection and advocacy agency in Washington, and is a member of the National Disability Rights Network.