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Court of Appeal:
Involuntary-Medication Order Is Subject to Writ Review
Opinion Says Mentally Incompetent Defendant Is Entitled to Immediately Challenge Interim Decision Compelling Administration of Anti-Psychotic Drugs Despite Upcoming Superior Court on Forced Medication
By Kimber Cooley, Staff Writer
Div. Three of the First District Court of Appeal held yesterday that a criminal defendant found mentally incompetent to stand trial is entitled to immediately challenge in the Superior Court an interim order by an administrative law judge for involuntary administration of antipsychotic medication, rejecting the contention that there was no need for emergency relief in light of an upcoming court hearing on the matter.
Justice Ioana Petrou wrote the opinion reversing the order by Napa Superior Court Judge Cynthia P. Smith which denied the petition for writ review. Presiding Justice Alison M. Tucher and Justice Victor Rodriguez joined in the opinion.
Petrou’s opinion acknowledges that the appeal is moot because the interim involuntary medication order is no longer in effect, but nevertheless addresses the merits, saying that the case presents a significant issue of public interest which is “both capable of repetition and likely to evade appellate review.”
Interim Order
Appealing the order was Diane Kaneko, who was charged by the Orange County District Attorney’s Office with making criminal threats in violation of Penal Code §422 and with committing an assault with a deadly weapon in violation of §245(a)(1) on Sept. 15, 2021. Kaneko was found incompetent to stand trial and was committed to the Department of State Hospitals (“DSH”) at a Napa facility.
DSH petitioned the Officer of Administrative Hearings (“OAH”) for an interim order, pursuant to Penal Code §1370, to compel the involuntary medication of Kaneko with antipsychotic drugs, asserting that she lacked the capacity to make such decisions, that her disorder required the treatment, and that serious harm to her physical or mental health would occur without the medication.
On Jan. 20, 2023, an administrative law judge ordered that Kaneko be involuntarily medicated for the period from Jan. 17, 2023 to Feb. 7, 2023. On Jan. 27, 2023, Kaneko filed a petition for a writ of administrative mandate in the Orange Superior Court.
Smith on Feb. 1 denied the petition, finding that Kaneko was not entitled to writ review because Penal Code §1370 provided for a “plain, adequate, [] speedy remedy” which, in this instance, was an upcoming Feb.7, 2023 hearing at which time the court would decide whether to continue to compel medication.
Appellate Review
Petrou found that the issue of whether Kaneko is entitled to writ review of the interim order raises important constitutional issues, noting the U.S. Supreme Court has recognized a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs and the California high court has recognized that the right to refuse antipsychotic drugs is protected under California’s right to privacy.
The jurist also found that the “short, 21-day time frame of these temporary involuntary medication orders” made the issue one likely to evade appellate review, and justified addressing the issue despite the moot controversy.
Petrou pointed out that §1370 provides that a treating psychologist at a DSH facility may involuntarily administer antipsychotic medications under certain circumstances to a defendant who has been committed after being found incompetent to stand trial. However, the section provides that the defendant is entitled to a medication review hearing before an administrative law judge.
If the administrative law judge orders entry of an interim order, the medication may continue for 21 days. The Superior Court must then hold a hearing within 18 days to determine whether the antipsychotic medication should be ordered beyond the 21-day interim period.
Legislative Intent
Looking to the plain language of §1370, Petrou found that it anticipated judicial review of interim involuntary medication orders. She said:
“[S]ubdivision (a)(2)(D)(i) expressly indicates the Legislature intended to allow for judicial review. That provision mandates appointment of an attorney or patients’ right advocate and sets forth their general duties. In listing those duties, the statute states the attorney or patient advocate must ‘advise the defendant of their right to judicial review of the panel’s decision, and provide the defendant with referral information for legal advice on the subject.’…Unless the Legislature intended judicial review to be available, it would make no sense for it to require the appointed attorney and/or patient advocate to advise the defendant of their right to judicial review.”
Petrou rejected the argument of the Office of Attorney General that the Superior Court process qualifies as a judicial review, writing:
“The subdivision relied upon by the Attorney General…is not designed to review the adequacy of the ALJ’s order. Rather, that provision requires the treating psychiatrist to file a separate petition for the purpose of obtaining ‘an order to administer antipsychotic medication beyond the 21-day certification period’….This statutory language expressly states that the superior court is not reviewing the adequacy of the temporary medication order, but rather conducting a separate proceeding to assess whether an additional one-year involuntary medication order is appropriate.”
Caselaw Support
The justice found that case law supports the court’s conclusion that writ review is appropriate and remarked:
“We further conclude the subsequent superior court medication hearing cannot constitute adequate judicial review because courts have uniformly concluded [incompetent to stand trial] defendants have a right to appeal from involuntary medication orders.”
Rejecting an argument that the cases were distinguishable because they dealt with orders from the superior court, Petrou opined:
“While these cases considered the issue in connection with one-year involuntary medication orders, we see no basis for distinguishing the appealability of a temporary involuntary medication order…. A temporary medication order, as with one-year orders, implicates significant liberty interests….Considering these significant interests, [incompetent to stand trial] defendants subjected to involuntary medication—even over a relatively short 18 day period—must be able to seek judicial review of their involuntary medication orders.”
Fact-Specific
Petrou declined to address Kaneko’s argument that substantial evidence did not support the temporary involuntary medication order as the question is “grounded in case-specific evidence not likely to recur in the same manner at future proceedings.”
She declared:
“The superior court’s holding that defendant was not entitled to writ review is reversed. Because we dismiss as moot defendant’s challenge to the court’s finding that substantial evidence supported the involuntary medication order, we need not remand.”
The case is D.K. v. Officer of Administrative Hearings (State Department of State Hospitals), 2024 S.O.S. 1613.
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