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March 20, 1992


Appeal from the Superior Court of the District of Columbia; (Hon. Robert M. Scott, Trial Judge)

Rehearing Granted August 18, 1992. Rehearing En Banc Denied August 18, 1992.

Before Schwelb and Wagner, Associate Judges, and Gallagher, Senior Judge.

The opinion of the court was delivered by: Schwelb

SCHWELB, Associate Judge: Appellant Tran Van Khiem (Khiem) was charged in 1986 with the premeditated murder of his parents. He was found incompetent to stand trial and is presently detained at Saint Elizabeths Hospital (the hospital). He now appeals from an order of the trial court directing that he be treated, over his objection, with psychotropic drugs. The primary purpose of the proposed treatment would be to render Khiem competent to stand trial.

Khiem contends that the administration of these drugs to him without his consent would abrogate his common law right to bodily integrity, as well as his statutory rights under the Health Care Decisions Act of 1988 (HCDA), D.C. Code § 22-2201 et seq. (1989). He also claims that the standards and procedures utilized by the hospital and by the trial Judge in ordering treatment run afoul of the Due Process Clause of the Fifth Amendment. We hold that the trial court made a reasonable accommodation between Khiem's liberty interest and the government's interest in bringing him to trial, that the HCDA is inapplicable, and that the procedures utilized below satisfied applicable constitutional standards. Accordingly, we affirm.



On the morning of July 24, 1986, the bodies of Mr. Tran Van Chuong and Mrs. Nam Tran Chuong, an elderly couple who were members of a prominent Vietnamese family, *fn1 were found in their home in northwest Washington, D.C. Investigation disclosed that both Chuongs had died from asphyxiation and that each had apparently been severely beaten. On July 25, 1986, their son, appellant Tran Van Khiem, then sixty years of age, was arrested and charged with the murders. A surety bond of $100,000 was imposed. Unable to post that amount, Khiem was detained at the District of Columbia Jail. An indictment was returned on April 22, 1987, charging Khiem with two counts of murder in the first degree. His trial was initially scheduled for July 1, 1987.

On June 25, 1987, following preliminary proceedings in which Khiem indicated that he did not propose to offer an insanity defense, Chief Judge Fred Ugast ordered that Khiem be transferred to the hospital for an examination of his mental condition. He directed the hospital to determine whether Khiem was competent to stand trial, whether an insanity defense might be available to him and, if so, whether Khiem was competent to waive it. Following several examinations and communications with the court, the hospital reported that Khiem was competent to stand trial and that he did not qualify for an insanity defense. The trial was rescheduled for March 8, 1988 and began on that date.

As the trial proceeded, Khiem conducted himself in a bizarre manner. *fn2 At the request of defense counsel, Judge Ugast halted the proceedings and ordered a competency screening. On March 18, 1988, after hearing testimony from the examining psychiatrist, the Judge found Khiem incompetent to stand trial. The Judge declared a mistrial *fn3 and recommitted him to the hospital pursuant to D.C. Code § 24-301 (a) (1989) for evaluation and treatment. The purpose of the commitment was to enable Khiem to regain his trial competency.

On June 13, 1988, the hospital reported that Khiem was incompetent to stand trial and that he was unlikely to regain his competency in the foreseeable future. This diagnosis was repeated on several occasions over the following two years at proceedings convened by the trial court.

A psychiatrist who had examined Khiem on behalf of the prosecution suggested at a 1989 hearing that anti-psychotic medication could have some potential for improving Khiem's condition and restoring his competency for trial. Judge Robert Shuker, to whom the case had been reassigned, directed the hospital to explore this possibility. The hospital advised the court, however, by letter dated September 18, 1989, that it had decided that psychotropic medication should not be administered to Khiem on an involuntary basis. It was the view of Dr. John Kelley, the Medical Director of the John Howard Pavilion, that Khiem was unlikely to respond positively to such medication and that his prognosis, with or without medication, was poor.

On October 4, 1989, the prosecution filed a motion to require [Khiem's] involuntary medication. The defense responded with a motion to terminate Khiem's commitment. On September 25, 1990, Judge Robert M. Scott, to whom the case had been reassigned, directed the hospital to provide an updated report.

In response to the Judge's order, the hospital reported that Khiem remained incompetent. Following an evaluation by his new doctor, Kenneth Rogers, M.D., however, the hospital now recommended that Khiem be treated with psychotropic drugs. The hospital indicated that psychotropic medication could reduce the symptoms of Khiem's illness (including his psychotic thinking) and render him competent for trial. Khiem invoked the hospital's internal administrative review procedures in an attempt to have this recommendation set aside. His administrative appeal was unsuccessful and, on March 19, 1991, Dr. Rogers' decision was affirmed by the hospital administration. Khiem, through counsel, asked the trial court not to follow the hospital's recommendation.

The trial Judge convened two hearings to determine how Khiem's case should proceed. On April 11, 1991, after considering the briefs and arguments of counsel, he concluded that the question for his consideration was whether the hospital's recommendation was arbitrary or capricious. Thereafter, at an evidentiary hearing which began on July 29, 1991, the Judge received the testimony of one medical witness called on behalf of Khiem and of three medical witnesses -- Dr. Rogers, Dr. Kelley, and Dr. John Livingood *fn4 -- called by the prosecution. The government's witnesses testified that the proposed involuntary treatment was medically indicated and that appropriate safeguards would be taken to avert any possible side-effects. The psychiatrist called by Khiem disagreed with the hospital's recommendation, but acknowledged that a minority of psychiatrists, especially those who practiced forensic medicine, might agree with the hospital's decision.

The Judge ruled that the hospital's recommendation "has been shown to be wholly reasonable and to have been based upon clinical determinations which are well founded medically." He specifically found, contrary to Khiem's claims, that the hospital's treatment decision had not been influenced by a desire to accommodate the perceived wishes of the court or the prosecution. The Judge rejected, on the strength of Washington v. Harper, 494 U.S. 210, 108 L.Ed.2d 178, 110 S.Ct. 1028(1990) and United States v. Charters, 863 F.2d 302(4th Cir. 1988) (en banc), cert. denied, 494 U.S. 1016, 110 S. Ct. 1317, 108 L.Ed.2d 493(1990), Khiem's contention that the court was without authority to order treatment unless Khiem consented to it, either personally or through the substituted judgment process. The Judge authorized the hospital to administer psychotropic medication to Khiem for a sixty-day period, but ordered that the patient be monitored for unfavorable side effects and that the treatment be discontinued if this was necessary to assure Khiem's well-being. The hospital was directed to make a progress report to the court within seventy-five days of the commencement of medication. This appeal followed.



A. In re A.C.

Relying primarily on this court's reference in In re A.C., 573 A.2d 1235, 1243 (D.C. 1990) (en banc), to "the tenet common to all *fn5 medical treatment cases: that any person has the right to make an informed choice, if competent to do so, to accept or forego medical treatment," Khiem contends that the trial Judge's order unlawfully overrode his common law right to bodily integrity. *fn6 He claims that before authorizing psychotropic medication, the trial Judge was required to make a determination whether Khiem was competent to decide whether such medication should be administered to him. Khiem further maintains that if the Judge found him not to be competent to make that decision, then the Judge was obliged to apply the principle of substituted judgment to ascertain what Khiem's wishes would have been if he had been competent to decide. See A.C., supra, 573 A.2d at 1249-51; In re Boyd, 403 A.2d 744, 750-52 (D.C. 1979). Extracting A.C. from its context, *fn7 Khiem evidently maintains that in light of our decision in that case, trial Judges are now without authority, as a matter of local common law, to order any medical treatment over a patient's objection, whether that objection is interposed directly by the patient or indirectly through the substituted judgment process. This rule, according to Khiem, is absolute; the court in A.C., he insists, "recognized no limits on who is protected by this common law principle." Our decision in A.C., as Khiem interprets it, would effectively enable a criminal defendant in his position to determine unilaterally whether he may be brought to trial. We discern nothing in A.C. which would support such a one-sided doctrine.

Khiem's bold approach derives any vitality which it may have from the court's use in the A.C. opinion of the words "all," 573 A.2d at 1243, and "every," id. at 1247. We recently reiterated in United States v. Alston, 580 A.2d 587, 594 n.12 (D.C. 1990), that this type of argument is predicated on a misconception of the nature and uses of judicial precedent, and therefore makes far too much out of too little:

In Kraft v. Kraft, 155 A.2d 910(D.C. 1959), the court pointed out that:

It is well to remember that significance is given to broad and general statements of the law only by comparing the facts from which they arise with those facts to which they supposedly apply.

155 A.2d at 913. See also Armour & Co. v. Wantock, 323 U.S. 126, 132-33, 89 L.Ed. 118, 65 S.Ct. 165(1944), where the Supreme Court aptly stated:

It is timely again to remind counsel that words of our opinions are to be read in the light of the facts of the order under Discussion. To keep opinions within reasonable bounds precludes writing into them every limitation or variation which might be suggested by the circumstances of cases not before the Court. General expressions transposed to other facts are often misleading.

(Emphasis added.)

This court specifically noted in A.C., supra, 573 A.2d at 1245-46, that the right to accept or reject medical treatment is not absolute. We commented that our Discussion of the circumstances in which a patient's wishes may be overridden, even in the context of the case then before us, presupposed a "major bodily invasion," and we explicitly declined to draw the line between major and minor surgery. Id. at 1246 & n.10. We found it unnecessary to decide, see A.C., supra, 573 A.2d at 1246& n.11, whether Hughes v. United States, 429 A.2d 1339(D.C. 1981) and United States v. Crowder, 177 U.S. App. D.C. 165, 543 F.2d 312(1976), cert. denied, 429 U.S. 1062, 50 L.Ed.2d 779, 97 S.Ct. 788(1977), both upholding as reasonable minor surgical intrusions under the skin to remove bullets from criminal suspects, would be decided differently in light of Winston v. Lee, 470 U.S. 753, 84 L.Ed.2d 662, 105 S.Ct. 1611(1985), in which the Supreme Court rejected the government's request to recover a bullet from a defendant's chest by major surgery requiring a general anesthetic. Our Discussion in the A.C. opinion of those cases necessarily recognized that law enforcement interests might be implicated in other cases, but we refrained from opining on questions unrelated to the merits of the case before us. This court thus explicitly left open in A.C. the very kinds of issues which Khiem now claims to be foreclosed by that decision.

A.C. was not about, and could not decide, how much weight should be given in the Judge's calculus to the government's interest in bringing to trial an accused who has been indicted for premeditated murder. The United States never had the opportunity in A.C. to present that law enforcement interest for the court's consideration. A.C. may not be converted, by barristerial ingenuity or judicial alchemy, into a sweeping rejection of contentions which were neither before the court nor relevant to the issues then at hand. We therefore cannot give A.C. the significance for the present controversy which Khiem attributes to it.

B. Khiem's Interest in Bodily Integrity.

As we indicated in A.C., the common law liberty interest in one's own bodily integrity is an important one. The Supreme Court, speaking through Chief Justice Rehnquist, recently reiterated its view, initially articulated more than a century ago, that

no right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.

Cruzan v. Missouri Dep't of Health, 497 U.S. 261, 110 S. Ct. 2841, 2846, 11 L.Ed.2d 224(1990) (quoting Union Pac. R. Co. v. Botsford, 141 U.S. 250, 251, 35 L. Ed. 734, 11 S. Ct. 1000(1891)); see also Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 129-30, 105 N.E. 92, 93 (1914) (Cardozo, J.). That right embraces a "significant liberty interest in avoiding the unwanted administration of antipsychotic drugs," Harper, supra, 494 U.S. at 221, for "the forcible injection of medication into a non-consenting person's body represents a substantial interference with that person's liberty." Id. at 229; accord, Riggins v. Nevada, 118 L.Ed.2d 479, 112 S.Ct. 1810, 1815 (1992).

We also agree with Khiem that his rights under the common law were not extinguished by his commitment to the lawful custody of the hospital. In Harper, supra, the Court recognized that a mentally ill individual who has been sentenced to imprisonment retains a right, both under state law and under the Due Process Clause of the Fourteenth Amendment, to be free from the arbitrary administration of antipsychotic medication. Id. at 221. See also Boyd, supra, 403 A.2d at 750-52(ordering substituted judgment inquiry where civilly committed incompetent individual raised religious objection to administration of psychotropic drugs).

But our recognition of this important aspect of individual autonomy in a free society does not lead us to accord it the absolute and preemptive character which Khiem claims for it. The government cannot intrude upon Khiem's bodily integrity without a showing of overriding justification and medical appropriateness. Riggins, supra, 112 S.Ct. at 1815. Once such a showing has been made, however, Khiem enjoys common law or due process protection only from an unreasonable or arbitrary determination that involuntary medication is appropriate. See Harper, supra, 494 U.S. at 221; Charters, supra, 863 F.2d at 305. Dean Prosser has remarked in a different but related context that "as with 'medical paternalism,' the notion of patient sovereignty can be carried too far." W. PAGE KEETON, PROPER AND KEETON ON THE LAW OF TORTS, § 32, at 190 n.60 (5th ed. 1984). Khiem's common law interest, like his due process protections, must be weighed against any legitimate interests asserted by the state, Harper, supra, 494 U.S. at 223, and a reasoned accommodation must be made between the competing interests. Id. at 236. *fn8

Moreover, Khiem having been lawfully committed to the hospital, the extent of his rights must be assessed in the context of his confinement. Id. at 222; Charters, supra, 863 F.2d at 305. The statute under which Khiem was committed, D.C. Code § 24-301 (a) (1989), provides that the court may commit an apparently incompetent criminal defendant to a mental hospital for "care and treatment" in order to enable him to regain his competency. See Williams v. Overholser, 104 U.S. App. D.C. 18, 20, 259 F.2d 175, 177 (1958). It would surely be incongruous, in light of § 24-301 (a), to hold that the court, after committing an accused for treatment to render him competent so that he can stand trial for the offenses with which he has been charged, is obliged to withhold treatment at the accused's sole option.

The Corporation Counsel contends in his brief that § 24-301 (a) abrogates any common law right of [committed defendants] to refuse treatment." He claims that under that provision, courts may review treatment decisions by the hospital only to "make sure that it has made a permissible and reasonable decision in view of the relevant information and within a broad range of discretion." See Tribby v. Cameron, 126 U.S. App. D.C. 327, 328, 379 F.2d 104, 105 (1967). Khiem responds that a statute in derogation of the common law must be strictly construed, and that common law rights remain in effect unless expressly repealed or modified. See United States v. Jackson, 528 A.2d 1211, 1215 (D.C. 1987); O'Connor v. United States, 399 A.2d 21, 26 (D.C. 1979). In our view, however, the common law provides Khiem with essentially the same rights as those recognized by the court in Tribby, but no more. Section 24-301 (a), as heretofore construed, is thus not in derogation of the common law.

Finally, Khiem contends that the prosecution is required to prove that its interest in medicating him over his objection is so compelling that no reasonable alternative exists. The availability of reasonable alternatives to the proposed treatment, if shown, would be a relevant factor in the overall inquiry, but this does not necessarily mean that the government must "set up and then shoot down every conceivable alternative method of accommodating the claimant's constitutional [or common law] complaint." Harper, supra, 494 U.S. at 225(quoting Turner v. Safley, 482 U.S. 78, 90-91, 96 L.Ed.2d 64, 107 S.Ct. 2254(1987)). In any event, as we show below, the law enforcement interest asserted by the government in the present case, which involves two alleged murders, is an especially compelling one. Riggins, supra, 112 S.Ct. at 1815.

C. The Government's Interest in Bringing Khiem to Trial.

Having assessed Khiem's liberty interest, we turn now to the competing interest asserted by the United States. As Justice Brennan wrote in his Concurring opinion in Illinois v. Allen, 397 U.S. 337, 347, 25 L.Ed.2d 353, 90 S.Ct. 1057(1970),

the safeguards that the Constitution accords to criminal defendants presuppose that government has a sovereign prerogative to put on trial those accused in good faith of violating valid laws. Constitutional power to bring an accused to trial is fundamental to a scheme of ...

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