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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 ue Ass S in ce a For( January -June 1989 Volume 9, Number I

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