An Act Regarding the Treatment of Forensic Patients
Maine Legislature, Session 127, LD 1391
Committee: Criminal Justice and Public Safety
Sponsors: MALABY, KATZ, HARLOW, HEAD, SANDERSON, VACHON, BRAKEY

Legislative Document 
No. 1391 
H.P. 941 
House of Representatives, May 6, 2015 
An Act Regarding the Treatment of Forensic Patients 
(AFTER DEADLINE) 
Approved for introduction by a majority of the Legislative Council pursuant to Joint Rule 
205. 
Reference to the Committee on Criminal Justice and Public Safety suggested and ordered 
printed. 
ROBERT B. HUNT 
Clerk 
Presented by Representative MALABY of Hancock. 
Cosponsored by Senator KATZ of Kennebec and 
Representatives: HARLOW of Portland, HEAD of Bethel, SANDERSON of Chelsea, 
VACHON of Scarborough, Senator: BRAKEY of Androscoggin. 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1.  15 MRSA §§106 and 107 are enacted to read: 
§106.  Involuntary medication of incompetent defendant 
1.  Definition.  As used in this section, "commissioner" means the Commissioner of 
Health and Human Services or the commissioner's designee. 
2.  Notice required; contents.  At any time after a defendant has been found 
incompetent to proceed and has been committed to the custody of the commissioner 
under section 101-D, subsection 5, the commissioner shall notify the court, prosecuting 
attorney and attorney for the defendant if the commissioner has determined that the 
defendant is not consenting to or responding to treatment and is unlikely to be restored to 
competency without the administration of antipsychotic medication over the defendant's 
objection.  The commissioner shall provide this notice only if there is no basis for 
involuntarily medicating the defendant other than to restore the defendant's competency.  
The commissioner shall state in the notice whether the commissioner believes that: 
A.  Medication is necessary to render the defendant competent; 
B.  Medication is substantially likely to render the defendant competent; 
C.  Medication is substantially unlikely to produce side effects that would 
significantly interfere with the defendant's ability to assist in the defendant's defense; 
D.  No less intrusive means of treatment are available; and 
E.  Medication is medically appropriate and is in the defendant's best medical interest 
in light of the defendant's medical condition. 
The commissioner shall also state in the notice whether less intrusive means of treatment 
have been attempted to render the defendant competent. 
3.  Court authorization.  The following provisions govern court authorization for 
the involuntary medication of a defendant under this section. 
A.  Upon receipt of the notice under subsection 2, the prosecuting attorney shall 
assess whether important state interests are at stake in restoring the defendant's 
competency and shall promptly notify the commissioner of the result of that 
assessment.  If the prosecuting attorney determines that important state interests are at 
stake, the prosecuting attorney shall file a motion seeking court authorization for 
involuntary medication of the defendant, and the court shall conduct a hearing within 
days of the filing of the motion, unless the court extends the time for good cause. 
B.  The court, in determining whether a defendant should be medicated over the 
defendant's objection, shall consider whether: 
(1)  Important state interests are at stake in restoring the defendant's competency; 
(2)  Involuntary medication will significantly further important state interests, in 
that the medication proposed: 
(a)  Is substantially likely to render the defendant competent to stand trial; 
and 
(b)  Is substantially unlikely to produce side effects that would significantly 
interfere with the defendant's ability to assist the defense counsel in 
conducting the defendant's defense; 
(3)  Involuntary medication is necessary to further important state interests; 
(4)  Any alternate less intrusive treatments are likely to achieve substantially the 
same results; and 
(5)  The administration of the proposed medication is medically appropriate, as it 
is in the defendant's best medical interest in light of the defendant's medical 
condition. 
4.  Potential penalty not relevant.  In determining under subsection 2 or 3 whether 
the proposed treatment is medically appropriate and is in the defendant's best medical 
interest, the potential penalty to which the defendant may be subject if the defendant is 
convicted of any charged offense is not a relevant consideration. 
5.  Findings; order.  If the court finds by clear and convincing evidence that the 
involuntary administration of antipsychotic medication to a defendant under this section 
is necessary and appropriate, it shall make findings addressing each of the factors in 
subsection 3, paragraph B and shall issue an order authorizing the administration of 
antipsychotic medication to the defendant over the defendant's objection in order to 
restore the defendant to competency.  When issuing the order, the court may order that 
medication may be administered by more intrusive methods only if the defendant has 
refused administration by less intrusive methods.  The court may order that the 
commissioner report to the court within a reasonable period following entry of the order 
as to whether the authorized treatment remains appropriate. 
6.  Application.  This section applies only if the prosecuting attorney seeks an order 
of involuntary medication for the purpose of rendering a defendant competent to proceed. 
§107.  Involuntary medication of patient 
1.  Definitions.  As used in this section, unless the context otherwise indicates, the 
following terms have the following meanings. 
A.  "Commissioner" means the Commissioner of Health and Human Services. 
B.  "Department" means the Department of Health and Human Services. 
C.  "Gravely disabled" means unable to provide for basic needs for food, clothing or 
shelter because of a mental illness or disorder. 
D.  "Patient" means a person held in a hospital under section 101-D or 103. 
E.  "Psychiatrist" includes a physician assistant working under the supervision of a 
psychiatrist and a psychiatric nurse practitioner. 
2.  Administration of psychiatric medication over objection prohibited; 
exceptions.  A patient may not be administered psychiatric medication over the objection 
of the patient except: 
A.  As ordered by the court under section 106; 
B.  In accordance with an advance health care directive; 
C.  For a patient under guardianship, as authorized by the guardian; or 
D.  For a patient who is not under guardianship, for whom no advance health care 
directive is known to be in effect and for whom no administration of medication 
under section 106 has been ordered, as provided in subsection 3. 
3.  Involuntary medication on nonemergency basis.  A hospital may seek to initiate 
involuntary medication of a patient under this section on a nonemergency basis only if all 
of the following conditions have been met: 
A.  A psychiatrist has determined that the patient has a mental illness or disorder; 
B.  A psychiatrist has determined that, as a result of the patient's mental illness or 
disorder, the patient is gravely disabled and lacks the capacity to consent to or refuse 
treatment with psychiatric medication or the patient is a danger to self or others; 
C.  A psychiatrist has determined that the patient should be treated with psychiatric 
medication and has prescribed one or more psychiatric medications for the treatment 
of the patient's mental illness or disorder, has considered the risks and benefits of and 
treatment alternatives to involuntary medication and has determined that the need for 
treatment outweighs the risks and side effects; 
D.  The patient has been advised of the risks and benefits of and treatment 
alternatives to the psychiatric medication and refuses or is unable to consent to the 
administration of the medication; 
E.  The patient is provided a hearing before a hearing officer.  The hearing must be 
held not more than 14 days after the filing of the notice by the hospital pursuant to 
paragraph G with the department's office of administrative hearings, unless counsel 
for the patient agrees to extend the date of the hearing; 
F.  The patient is provided counsel at the department's expense at least 7 days prior to 
the hearing under paragraph E; 
G.  The patient and counsel are provided with written notice of the hearing under 
paragraph E by the hospital at least 7 days prior to the hearing. The written notice 
must: 
(1)  Set forth the patient's diagnosis, the factual basis for the diagnosis, the basis 
upon which psychiatric medication is recommended, the expected benefits, 
potential side effects and risks of the medication to the patient and treatment 
alternatives to medication, if any; 
(2)  Advise the patient of the right to be present at the hearing, the right to be 
represented by counsel, the right to present evidence and the right to cross-
examine witnesses.  Counsel for the patient must have access to all medical 
records and files of the patient; and 
(3)  Inform the patient of the patient's right to file an appeal in Superior Court of 
a decision of the commissioner authorizing involuntary treatment. 
Failure of the hospital to provide timely or adequate notice pursuant to this paragraph 
may be excused only upon a showing of good cause and the absence of prejudice to 
the patient. In making this determination, the hearing officer may consider factors 
including, but not limited to, the ability of the patient's counsel to prepare the case 
adequately and to confer with the patient, the continuity of care and, if applicable, the 
need for protection of the patient or institutional staff that would be compromised by 
a procedural default; 
H.  The hearing officer at the hearing under paragraph E determines by clear and 
convincing evidence that: 
(1)  The patient has a mental illness or disorder; 
(2)  As a result of that illness or disorder the patient is gravely disabled and lacks 
the capacity to consent to or refuse treatment with psychiatric medication or the 
patient is a danger to self or others if not medicated; 
(3)  There is no less intrusive alternative to involuntary medication; and 
(4)  The need for treatment outweighs the risks and side effects; 
I.  The hearing officer at the hearing under paragraph E recommends to the 
commissioner that an order authorizing administration of involuntary medication be 
issued; 
J.  The commissioner issues an order authorizing administration of involuntary 
medication.  The decision whether to issue an order authorizing administration of 
involuntary medication rests with the commissioner.  An order authorizing 
administration of involuntary medication provides authority to undertake procedures 
and administer medication to monitor and manage side effects, all consistent with 
medical standards of care; and 
K.  The historical course of the patient's mental illness or disorder, as determined by 
available relevant information about the course of the patient's mental illness or 
disorder, is considered when it has direct bearing on the determination of whether the 
patient, as the result of a mental illness or disorder, is a danger to self or others or is 
gravely disabled and lacks the capacity to consent to or refuse treatment. 
4.  Emergency action.  Nothing in this section prohibits a physician from taking 
appropriate action in an emergency, as defined by the department in rules adopted 
pursuant to Title 34-B, section 3003 and in accordance with procedures contained in 
those rules. 
5.  Effective date and expiration of order.  An order authorizing involuntary 
medication pursuant to subsection 3 is effective 24 hours after it is issued and expires one 
year after the date of the order, unless a new authorization is given pursuant to the 
procedures set forth in subsection 7 or authorization is terminated early based on a 
significant change to the patient's medical condition such that the need for treatment no 
longer outweighs the risks and side effects pursuant to the procedures set forth in 
subsection 8. 
6.  Effect of subsequent consent.  A patient's subsequent informed consent does not 
abrogate an order authorizing involuntary medication under this section. 
7.  Extension.  To extend an authorization that is in effect allowing involuntary 
medication under this section, the hospital shall, no later than 21 days prior to the 
expiration of the authorization, file with the department's office of administrative hearings 
and provide the patient and the patient's counsel with a written notice indicating the 
hospital's intent to extend the authorization under the existing decision. 
A.  A patient who is the subject of a filing under this subsection must be given the 
same due process protections as specified in subsection 3.  The hearing on any 
request to extend an order for involuntary medication must be conducted prior to the 
expiration of the authorization that is in effect.  If the hospital wishes to add a basis to 
an existing decision authorizing involuntary medication, the notice required by 
subsection 3, paragraph G must also specify the additional basis and the conduct 
within the past year that supports that additional basis.  The hospital must prove the 
additional basis and conduct at the hearing as specified in subsection 3, paragraph H. 
If the hearing officer determines that the requirements for the extension of an 
authorization described in paragraph B have been met, the hearing officer must 
recommend an extension of the authorization to the commissioner.  While the hearing 
officer may consider evidence of behavior during the period of involuntary 
medication, no new acts need be alleged or proven in order to support an extension of 
the authorization that is in effect. 
B.  The commissioner may order an extension of an authorization under this 
subsection.  An order extending an authorization that is in effect must be granted 
based on clear and convincing evidence that the patient has a mental illness or 
disorder that requires treatment with psychiatric medication and that, but for the 
medication, the patient would revert to the behavior that was the basis for the prior 
order authorizing involuntary medication, coupled with evidence that it is unlikely 
that the patient would be able or willing to manage the patient's own medication and 
treatment regimen. 
C.  An extension under this subsection is valid for one year after the date of the 
hearing under paragraph A. 
8.  Early termination.  To request early termination of an authorization allowing 
involuntary medication, the patient or the patient's designated representative shall file a 
request with the department's office of administrative hearings, along with copies of 
documents from the patient's hospital record, or from another medical source, 
demonstrating that there has been a significant change to the patient's medical condition.  
The hearing officer shall determine within 14 days whether the documents are sufficient 
to show such a change, and, if so, shall schedule a hearing to determine whether the 
change in medical condition is such that the benefits of the authorized treatment no longer 
outweigh the risks and side effects. 
A.  A hearing under this subsection must be held no more than 14 days after the 
hearing officer's determination, unless the patient or the patient's designated 
representative agrees to extend the date of the hearing.  The authorization remains in 
effect unless it is terminated following the hearing. 
B.  The patient, the patient's designated representative, if any, and the hospital must 
be provided with written notice of the hearing under this subsection at least 7 days 
prior to the hearing. The written notice must: 
(1)  Advise the patient of the right to be present at the hearing, the right to present 
evidence and the right to present and examine witnesses; and 
(2)  Inform the patient of the patient's right to file an appeal in Superior Court of 
a decision of the commissioner determining that the benefits of the authorized 
treatment continue to outweigh the risks and side effects. 
C.  For purposes of a request for early termination of an authorization under this 
subsection, the patient may name as the patient's designated representative a lay 
advisor provided by the hospital, a lawyer provided by the patient at the patient's own 
expense or another representative who is selected by the patient and who is willing 
and able to assist in the proceeding. 
D.  If, following a hearing under this subsection, the hearing officer determines by 
clear and convincing evidence that the benefits of authorized treatment no longer 
outweigh the risks and side effects, the hearing officer must recommend termination 
of the authorization to the commissioner.  The commissioner may order termination 
of the authorization. 
9.  Final agency action.  An order issued by the commissioner under subsection 3, 
paragraph J, subsection 7, paragraph B or subsection 8, paragraph D is a final agency 
action.  
10.  Rules.  The department may adopt rules to implement this section.  Rules 
adopted pursuant to this subsection are routine technical rules as described in Title 5, 
chapter 375, subchapter 2-A. 
SUMMARY 
This bill allows the Commissioner of Health and Human Services to administer 
medication to a defendant who has been found incompetent to proceed without the 
defendant's consent if a court finds that certain standards have been met.  It allows the 
commissioner to authorize a hospital to administer medication to a defendant who has 
been found incompetent to proceed or to a person who has been committed to the custody 
of the commissioner following acceptance of a negotiated insanity plea or following a 
verdict or finding of insanity without that defendant's or person's consent if certain 
standards are met, subject to appeal to the court.