The opinion of the court was delivered by: Sullivan, District Judge.
MEMORANDUM OPINION & ORDER
This matter is before the Court for review of the decision by
the Bureau of Prisons ("BOP") to forcibly administer
antipsychotic drugs to the defendant, a pretrial detainee
presently committed to a federal facility to restore his
competency to stand trial.
On April 22, 1999, the Court committed the defendant to the
custody of the United States Attorney General pursuant to
18 U.S.C. § 4241(d), and the defendant was admitted to the Health
Services Division of the Federal Correctional Institution in
Butner, North Carolina on May 5, 1999. As part of the Court's
April 22 Order, and at the defendant's request, the Court stayed
any action by the BOP to medicate the defendant without his
consent and ordered that defense counsel receive reasonable
notice prior to the commencement of an administrative hearing:
[S]hould qualified medical personnel within the
Bureau of Prisons, in the course of defendant's
treatment, decide that the administration of
psychotropic medications is appropriate, and should
it appear that defendant will not provide voluntary
written informed consent to the administration of
such medication, then the Bureau of Prisons may
follow the administrative procedures under
28 C.F.R. § 543, provided that counsel for Mr. Weston receive
reasonable notice before a hearing commences under §
543. The Court and counsel for the parties shall be
immediately notified of all determinations made
within the administrative process and shall be
provided copies of the written report required under
§ 543(a)(5), and also shall be provided copies of any
decision by the institution's mental health division
administrator should an administrative appeal be
taken. No administration of psychotropic medications
to defendant against his will shall occur without the
prior approval of this Court in a written Order.
April 22, 1999 Order, at 6 (emphasis added).
In compliance with the Court's Order, Dr. Sally Johnson,
Associate Warden Health Services, FCI-Butner, informed the Court
on May 20, 1999, that the defendant refused to take antipsychotic
medication voluntarily and requested that the Court issue a
written order to treat the defendant.*fn1 Pursuant to
28 C.F.R. § 549.43,*fn2 the Butner facility held an involuntary medication
hearing on May 14, 1999. On May 13, the day before the
hearing, the defendant declined to select a staff representative,
so Dr. Herbel, the Staff Psychiatrist appointed to be hearing
examiner, appointed Mr. Ray Pitcairn, the Day Watch Nursing
Supervisor, to be the defendant's Staff Representative.*fn3 Dr.
Herbel indicated in his report of the hearing that the defendant
refused to present any evidence or to respond to Dr. Johnson's
testimony and that he refused to speak other than stating that
"Upon the advice of my attorney, I cannot make any comments or
statement or sign any documents." Hr'g Tr., at 40 (5/28/99).
The report further indicates that the defendant refused to
speak with Mr. Pitcairn "due to the advice of his attorney."
Based on the evidence presented to him at the hearing, which
consisted solely of Dr. Johnson's reasons for wanting to medicate
him, Dr. Herbel concluded that the defendant suffers from a
mental disorder and that he needs to be medicated. See Dr.
Johnson Ltr. (5/20/99), Involuntary Medication Report attachment,
at 8. The defendant appealed the hearing examiner's decision, and
the warden denied the appeal on May 18, 1999.
Following the receipt of Dr. Johnson's May 20, 1999 letter, the
Court held a conference with the attorneys on May 24, 1999, and
then decided to hold a hearing to supplement the sparse
administrative record.*fn4 See Esch v. Yeutter, 876 F.2d 976,
991-93 (D.C.Cir. 1989) (discussing circumstances that justify
going outside the administrative record). At the hearing on May
28, 1999, Mr. Pitcairn testified by
telephone that the defendant refused to speak with him prior to
the hearing. As a result, Mr. Pitcairn explained that "there was
nothing [he] could say for [defendant] except for the fact [he]
attempted to explain to [defendant] the procedures as [he]
understood them." Id. at 123. Mr. Pitcairn further added that
the defendant did not state that he did not want to take
medication until the time of the hearing. Id. at 126-127. Mr.
Pitcairn admitted that he presented no favorable evidence against
forced medication and made no attempt to determine whether such
evidence existed. Id. at 127. The Court finds it most
significant that Mr. Pitcairn has served as a staff
representative approximately once a month during his 22-month
employment at Butner, id., and that his experience with the
defendant marked the first time that an inmate had refused to
speak with him. Id.
As an initial matter, the Court finds that the Bureau of
Prisons failed to comply with this Court's April 22 Order, which
required that Butner provide defense counsel with reasonable
notice of the involuntary medication hearing. Dr. Johnson
testified that she informed defense counsel, during his visit to
Butner on May 10, 1999, that she "would proceed with the
involuntary medication review process within the week." Hr'g Tr.,
at 36 (5/28/99). Contrary to the Court's Order, Butner provided
defense counsel with absolutely no notice of the hearing date.
Thus, defense counsel was unable to contact the Staff
Representative. This failure troubles the Court, especially given
the Bureau of Prisons' failure to notify defense counsel of an
involuntary medication hearing in a recent similar case. See
United States v. Morgan, Criminal No. 4:98-00428 (D.S.C. Feb. 9,
1999 Order, at 2 n. 1) ("The court also notes that BOP failed to
notify Defendant's counsel of the hearing, as was previously
ordered by the court.").
In addition to its concern over the lack of notice to defense
counsel, the Court also finds that the record in this case
reveals that the hearing officer did not have before him "any
evidence favorable to the patient's position." See 59-91(6000)
Duties of Staff Representative, Involuntary Medication Hearing.
Indeed, defendant's staff representative, Mr. Pitcairn, testified
that he said nothing at the hearing other than that the defendant
had refused to talk to him. The record does not indicate that Mr.
Pitcairn reviewed the defendant's files to locate evidence
favorable to the defendant. Furthermore, the Court is uncertain
if Mr. Pitcairn "[spoke] to witnesses who might [have]
furnish[ed] evidence on behalf of the patient." Id. Although
the memo indicates that the Staff Representative is required to
speak to such witnesses only "if the patient indicates there are
such witnesses whom the patient wishes to be called," Mr.
Pitcairn was certainly aware, or should have been aware, that the
defendant was represented by counsel and could have contacted
defendant's attorneys, or vice versa.
At the May 28 hearing, the defendant proffered his position
that "the medication is not justified [and] not needed," Hr'g
Tr., at 4 (5/28/99) and also stated that his expert would have
testified that "to a reasonable degree of medical certainty, [the
defendant] would not be made competent, that his delusions were
too ingrained, and in addition there would have been some
testimony about some of the side effects that Dr. Johnson . . .
minimized." Hr'g Tr., at 129 (5/28/99). Although Dr. Johnson
testified that she believes the defendant has a 70-75% likelihood
of becoming competent through the ...