# Washington v. Harper
## Concurring Opinions

    Blackmun
    Stevens
United States Supreme Court
494 U.S. 210
Washington v. Harper
No. 88-599 Argued: Oct. 11, 1989. --- Decided: Feb 27, 1990
Syllabus
Respondent Harper has been a ward of the Washington state penal system since his 1976 robbery conviction. Both as an inmate and while temporarily on parole, he received psychiatric treatment, including the consensual administration of antipsychotic drugs. He has engaged in violent conduct, and his condition has deteriorated when he did not take the drugs. On two occasions, he was transferred to the Special Offender Center (SOC or Center), a state institute for convicted felons with serious mental illness, where he was diagnosed as suffering from a manic-depressive disorder. While at the Center, he was required to take antipsychotic drugs against his will pursuant to an SOC Policy. The Policy provides, inter alia, that, if a psychiatrist orders such medication, an inmate may be involuntarily treated only if he (1) suffers from a "mental disorder" and (2) is "gravely disabled" or poses a "likelihood of serious harm" to himself or others; that, after a hearing and upon a finding that the above conditions are met, a special committee consisting of a psychiatrist, a psychologist, and a Center official, none of whom may be currently involved in the inmate's diagnosis or treatment, may order involuntary medication if the psychiatrist is in the majority; and that the inmate has the right to notice of the hearing, the right to attend, present evidence, and cross-examine witnesses, the right to representation by a disinterested lay adviser versed in the psychological issues, the right to appeal to the Center's Superintendent, and the right to periodic review of any involuntary medication ordered. In addition, state law gives him the right to state-court review of the committee's decision. Both of the involuntary treatment proceedings were conducted in accordance with the SOC Policy. During his second stay at the Center, but before his transfer to a state penitentiary, Harper filed suit in state court under 42 U.S.C. § 1983. The trial court rejected his claim that the failure to provide a judicial hearing before the involuntary administration of antipsychotic medication violated the Due Process Clause of the Fourteenth Amendment. The State Supreme Court reversed and remanded, concluding that, under the Clause, the State could administer such medication to a competent, nonconsenting inmate only if, in a judicial hearing at which the inmate had the full panoply of adversarial procedural protections, the State proved by "clear, cogent, and convincing" evidence that the medication was both necessary and effective for furthering a compelling state interest.
Held:
1. The case is not rendered moot by the fact that the State has ceased administering antipsychotic drugs to Harper against his will. A live case or controversy remains, since there is no evidence that Harper has recovered from his mental illness; he continues to serve his sentence in the state prison system; and there is a strong likelihood that he may again be transferred to the Center, where officials would seek to administer antipsychotic medication pursuant to the Policy. Thus, the alleged injury likely would recur but for the decision of the State Supreme Court. Pp. 218-219.
2. The Due Process Clause permits the State to treat a prison inmate who has a serious mental illness with antipsychotic drugs against his will, if he is dangerous to himself or others and the treatment is in his medical interest. Although Harper has a liberty interest under the Clause in being free from the arbitrary administration of such medication, the Policy comports with substantive due process requirements, since it is reasonably related to the State's legitimate interest in combating the danger posed by a violent, mentally ill inmate. The Policy is a rational means of furthering that interest, since it applies exclusively to mentally ill inmates who are gravely disabled or represent a significant danger to themselves or others; the drugs may be administered only for treatment and under the direction of a licensed psychiatrist; and there is little dispute in the psychiatric profession that the proper use of the drugs is an effective means of treating and controlling a mental illness likely to cause violent behavior. Harper's contention that, as a precondition to antipsychotic drug treatment, the State must find him incompetent, and then obtain court approval of the treatment using a "substituted judgment" standard, is rejected, since it does not take account of the State's legitimate interest in treating him where medically appropriate for the purpose of reducing the danger he poses. Similarly, it has not been shown that the alternatives of physical restraints or seclusion would accommodate his rights at de minimis cost to valid penological interests. Pp. 219-227.
3. The Policy's administrative hearing procedures comport with procedural due process. Pp. 228-236.
(a) The Due Process Clause does not require a judicial hearing before the State may treat a mentally ill prisoner with antipsychotic drugs against his will. Harper's not insubstantial liberty interest, when considered with the government interests involved and the efficacy of the particular procedural requirements, is adequately protected, and perhaps better served, by allowing the decision to medicate to be made by medical professionals rather than a judge. It cannot be assumed that a mentally disturbed patient's intentions, or a substituted judgment approximating those intentions, can be determined in a single judicial hearing apart from the realities of frequent and ongoing medical observation. Nor can it be ignored that requiring judicial hearings will divert scarce prison resources from the care and treatment of mentally ill inmates. Moreover, the risks associated with antipsychotic drugs are for the most part medical ones, best assessed by medical professionals. The Policy contains adequate procedural safeguards to ensure that the prisoner's interests are taken into account. In particular, the independence of the decisionmaker is adequately addressed, since none of the hearing committee members may be involved in the inmate's current treatment or diagnosis, and the record is devoid of evidence that staff members lack the necessary independence to provide a full and fair hearing. Pp. 228-235.
(b) The Policy's procedures satisfy due process requirements in all other respects. The provisions mandating notice and the specified hearing rights satisfy the requirement of a meaningful opportunity to be heard, and are not vitiated by prehearing meetings between the committee members and staff absent evidence of resulting bias or that the actual decision is made before the hearing. The hearing need not be conducted in accordance with the rules of evidence, and the state court's "clear, cogent, and convincing" standard of proof is neither required nor helpful when medical personnel are making the judgment required by the Policy. An inmate may obtain judicial review of the committee's decision, and the trial court found that the record compiled under the Policy was adequate to allow such a review. Nor is the Policy deficient in not allowing representation by counsel, since the provision of an independent lay adviser who understands the psychiatric issues is sufficient protection given the medical nature of the decision to be made. Pp. 235-236.
110 Wash.2d 873, 759 P.2d 358, (1988); reversed and remanded.
KENNEDY, J., delivered the opinion for a unanimous Court with respect to Part II, and the opinion of the Court with respect to Parts I, III, IV, and V, in which REHNQUIST, C.J., and WHITE, BLACKMUN, O'CONNOR, and SCALIA, JJ., joined. BLACKMUN, J., filed a concurring opinion, post, p. 236. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN and MARSHALL, JJ., joined, post, p. 237.
William L. Williams, Kenmore, Wash., for petitioners.
Paul J. Larkin, Jr., Washington, D.C., for the U.S. as amicus curiae, supporting petitioners, by special leave of Court.
Brian Reed Phillips, Everett, Wash., for respondent.
Justice KENNEDY delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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