9 Dev. Mental Health L. 1 (1989)

handle is hein.journals/dvmnhlt9 and id is 1 raw text is: Developments in
Mental Health Law
Institute of Law, Psychiatry and Public Policy  The University of Virginia
Does competency matter after Charters?

by Michael L. Perlin
The en banc review
While Charters I was like contemporary state cases
involving civilly committed patients (such as the New
York Court of Appeals's Rivers v. Katz decision), it
was clearly a far cry from most of the decisions that
dealt with individuals committed pursuant to the filing
of criminal charges. Had the panel decision stood,
there is no question that it would have altered signifi-
cantly the body of law applying to this universe of pa-
tients. Thus, when the fourth circuit granted en banc
review, it was reasonable to draw the inference that it
was not simply to affirm-in toto-the panel's truly
groundbreaking decision.
It did just the opposite: it vacated the panel deci-
sion and remanded the case to the district court for
further proceedings in accordance with its opinion,
holding that the district court had correctly determined
that Charters's interests were adequately protected by
the exercise of the professional judgment of Butner's
medical staff at the time of the decision to medicate,
leaving virtually nothing of the panel's original reason-
ing or holding. I will briefly set out the reasoning that
the majority employed in coming to its decision and at-
tempt to unearth some of the hidden agendas that I
think I can discern in it.
Basically, the en banc opinion in Charters II sug-
gests that the panel was wrong about almost every-

Michael L. Perlin, J.D., is Associate Professor of Law at New York
Law School and Director of the Federal Litigation Clinic. Mr. Perlin
participated in the Twelfth Annual Symposium on Mental Health
and the Law in March, 1989. What follows is an excerpt of Mr.
Perlin's longer presentation
[on the impact of the Fourth
Circuit Court of Appeals de-    An
cision inU.S. v. Charters, 863  A   So     in    this     iss
F.2d 302 (4th Cir. 1988) (en
banc) (Charters 11), vacating  In the Virginia General
829 F.2d 479 (4th Cir.
1987)]. Charters I was         Profile of NGRI patient
discussed in 8 Developments
in Mental Health Law 1. The    Laws affecting substan
footnotes have been omitted
to save space but are avail-    Review    of Handbook ot
able upon request.

thing. While it agreed that Charters did possess a
constitutionally-retained interest in freedom from bodi-
ly restraint (and that this interest was implicated by
the forcible administration of psychotropic drugs), and
that this interest is protected against arbitrary and
capricious actions by government officials, it recast
the issue in dispute:
[W]hat procedural protection is constitutionally re-
quired to protect the interest in freedom from bodily
intrusion that is retained by an involuntarily-committed
individual after a prior due process proceeding that sig-
nificantly curtails his basic liberty interest[?]
It rationalized the shift in focus this way: since Char-
ters came legally into the custody of the United
States, the current limitations on his liberty interest
were constitutionally acceptable, and his retained
freedom-from-bodily-intrusion interest must thus yield
to the legitimate incidents of his institutionalization.
Before it embarked upon its own analysis, the en
banc court stopped to critique the language of the
panel that had cited the potentially mind-altering
quality of drug treatment, noting that this phrase was
rife with all the images that evoke the use by totali-
tarian states of 'mind-controlling' psychiatric tech-
niques specifically to curtail individual liberty. In a
footnote it pointed out that tardive dyskinesia is the
principal side-effect that may be threatened and that
its pathology, its probability, its susceptability to treat-
ment and its durability probably cannot be more
pessimistically and vividly described than [by] the
selected items from the legal and psychiatric litera-
ture in the panel's initial opinion, and that a much
less drastic appraisal of the risk-potential is made by
the responsible elements in the relevant scientific
communities.
With this commen-
tary about the relevan-
*                            cy of social science
research under its belt,
embly .............. 4        the court proceeded to
Virginia ........... .8       analyze the case before
it. Employing a strict
users ........... .13         Mathews v. Eldridge
ensic Psychology . . . 18     balancing test, it relied
Continued on next page

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January -June 1989

Volume 9, Number I

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