person be forcibly medicated against his will for the sole purpose of rendering him competent to stand trial and supreme court laid out very clear narrow provisions for when the government should be able to do that this case was an absolutely not one of those rare circumstances because the medication that the government is proposing to force honest a is one that the uncontroverted evidence shows is substantially likely to give him to render him permanently disabled and unable to assist counsel the evidence in the status quo and wait to see what the future brings well according to the statutory provisions the next step would be a civil commitment type hearing well but but maybe not supposed to become same ed and then try for civil commitment isn't that what you think he's if he's given held all and he won't be able to communicate with his counsel this is assuming that it doesn't kill him in the certainly would diminish his ability to show any sort of emotions the government doctor also the side of the fact that the government's doctor did not disagree that the medication would have this effect on mr della steroids the doctor also proposed treating him with something called could be congenital and to diminish those symptoms and again  does look at the seriousness of the offense and the maximum penalties attached to it but all of the cell factors have to be satisfied individually because all of them are important and i would say that the most important is the best these medications are meant to assist rather than interfere with the defendants at the ready to interact with counsel those cannot be the types of medical reasoned findings that cell me the court to rely on and that certainly it's just it's been suggested by this court in rivera that there needs to be a medically developed record and we don't have a medically developed record in this case as we know and so we don't know the reaction that he'll have but what we do know is that he has a substantial likelihood of developing tardive dyskinesia and they're simply there simply i we consider the criminal case or not this man is severely mentally disturbed and all the medical experts agree that this is in his best medical interest the defense psychiatry has testified that he is suffering from paranoid schizophrenia that you know a clinical setting in the outside world this is the medication anti psychotic medication that he would recommend for a patient of this type  the government doctors agree with that assessment the only disagreement is as to which medication is proposed and even there the disagreement is not very why both doctors agree that in the best of all worlds an oral medication such as abilify would be the appropriate medication that option unfortunately has been taken away from us in this hypothetical we  to the next best alternative and that's an injectable and inject injectables have necessary side effects on the government doesn't discount for one moment the grave nature of this situation it's always a very serious matter when we seek to forcibly medicate anyone in the society but the injectables have side effects that must be balanced and was balanced by the court and the problem that's been ordered is to permit him to stand trial so right that's correct but is it clear that if he were to stay in a medical facility that they try to give him the same kind of stuff well you know order to forcibly medicated him because he won't accept it voluntarily they would have to make a finding of dangerousness you know in the prison officials have indicated that's one idea i didn't understand what they've indicated what they've indicated that under his current circumstances they don't consider him a danger to self or others aggressive behavior or anything that would merit medicating based on dangerousness now that i was talking about i was taught i was going to talk about the potential risks of tardive dyskinesia and you know other side effects that again is a very real risk which the government doctors acknowledge but i think we have to understand two things first of all that's  worst case scenario that is a potential thirty percent chance of developing those side effects if injectable is used for up to a one year period and therein lies the rub because the hope is that once he is medicated with an injectable for a short period of time he will become lucid enough to understand that this is in his best interest and will agree to take the oral medications and these are determinations that i think are quintessentially medical determinations not legal ones the doctor on scene can manage the side effects as  so the side effects are real but they can be managed and that's exactly what i think the court has in mind when they give the discretion to the medical doctors to  there is some disagreement in the circuits as to the standard of review for the four cell factors and basically i think it breaks down this way that to the extent that the decision is a legal decision such as whether or not there is a substantial interest government interest in trying the defendant that is a denote a review and to the extent it's a factual question such as which medication is more appropriate whether it is medically appropriate that is a factual determination which is governed by the abuse of discretion standard but as far as i'm aware there's no standard that has been  here that you weren't in a position make him competent enough to stand trial is there evidence that if he were just an ordinary late patient of these doctors that they would prescribe this stuff yes i think there is you are and i think that's exactly what the doctors were saying doctor to choose among the various choices depending on their patient and other circumstances but they both agree that treatment with an anti psychotic of some kind is the medically appropriate remedy  and they also and to amplify on that talk therapy other forms of therapy are classically not appropriate for this type of condition it's a severe mental disease so cannot be controlled but there are other side effects such as drowsiness nausea and things of that nature that certainly can be controlled and dr sarazen pointed out in his testimony for instance he could manage the drowsiness for trial purposes by choosing to medicate the defendant had night so that he would be refreshing the morning we proposed also that that could be managed  by just making the district judge aware of the condition and taking recesses as necessary but both doctors testified that it would not have any effect on his cognitive function in fact they both said it would restore competency and figures that defense counsel are talking about a worst case scenarios and assume that we'll be continuing permanently with an injectable and it's always possible that some point that  science here but even the defense expert dr kwan back well here's an initial letter to the court indicated that there was a seventy percent likelihood that he would be restored top of competency with the use of anti psychotics so i think walk away you wouldn't choose to remain lee is now as opposed to getting medical help if you are free to choose and yet if the court orders and he great of this balancing test if this were a lesser case at this if we were talking about shoplifting if we were talking about some other relatively minor crime i think perhaps society could confined through civil committed well well and that that would be the normal course of things if we choose not not to medicate him frankly you know it's  things i'd like to say in conclusion one is that i think we want to encourage the bureau of prisons to use the least restrictive alternative in this case they found that they could adequately manage the prison population of this particular individual through alternatives other than their involuntary medication i think that's what we want to to properly protect and defend its constitutional rights from involuntary medication i also want to just point we touch on the defense argument the absence of administrative hearings that argument was never before the court and i think just a brief review of the procedural history of this case is adequate to demonstrate that the judge district judge in this case got the letter from bureau of prisons indicating that the defendant was not willing to accept voluntary testimony there was no response a brief by the defense objecting to any of that we went to an evidentiary hearing put on our testimony again that transcript is devoid of any argument by the defense that the case should be remanded for administrative hearing they cited no regulations no administrative procedure for doing that there was nothing to alert the district judge that this was at all an issue in the case it was argued nearly over two months later after the defense request another continuance to get transcripts the transcript of that argument is devoid of any discussion about the need for an administrative hearing so i think the defendant has forfeited that argument it's just not on the table what we're really talking about here is the district judge's exercise of his discretion in concluding that the government option to medicate was the only one in other words there's nothing to indicate that the defendant ever in the first instance indicated that my earlier answer was that you may want to parse the issues there forestall factors some of the stuff factors lend themselves to a legal determination which would be review and others of those factors are more factual in nature which would be of use of discretion the very the primary issue in this case to me is a kind of use of discretion whether the judge reviewing the facts presented heard the testimony from the two doctors and was able to question them on that issue thank you thank you alistair's is substantially likely to develop tardive dyskinesia nothing was ever said that that would be the worst case scenario moreover even though there is of course some latitude in discretion in terms of determining the dosage of this medication the burden is on the government to propose medical plan that they that they plan to to implement with regard to t light of the record which indicates that for people in his age category the the chance is so substantially high i also want to refusing to be medicated and because the supreme court has said that he has a substantial liberty interest in remaining free of involuntary medication i think that's how we get to to this point and the reason we're is that it's all kind of odd that we're saying that someone who is a paranoid schizophrenia is making a rational decision that he doesn't want mean i also want to say that in terms of you know the doctor's proposal that he'll be injected with this medication which can immediately give him effects the doctor actually propose injecting this short term  immediate acting held all over a period of four or five days and yes asking him whether he would like to take an oral medication but i think that the panel should recognize that the record also indicates what that forced medication until he voluntarily wanted to take this medication this is what the government is proposing and this is why the standard is very high and this is why the courts have said that the court is not