PA 07-71—sHB 6391

Judiciary Committee

Public Health Committee


SUMMARY: This act establishes a procedure and legal standard by which criminal courts may order that mentally ill defendants charged with serious crimes be involuntarily given psychiatric medication in order to maintain their mental competence throughout their trials. By law, court orders for involuntary medication expire as soon as competency is restored; judges can order that medication be resumed if the defendant relapses into incompetence.

The act applies to cases in which the court has already found that (1) the defendant's mental illness makes him or her unable to give consent to the medication and (2) the state's interest in determining the defendant's guilt or innocence overrides the defendant's interest in making his or her own medical decisions.

The act establishes procedures and legal standards for making this determination. They mirror existing laws governing involuntary medication of defendants in order to restore them to competency.

EFFECTIVE DATE: October 1, 2007


The law requires the court to appoint a health care guardian to examine the defendant and make a court report with recommendations concerning the appropriateness of involuntarily medicating an incompetent defendant. The report must include the guardian's findings on the (1) risks and benefits of the medication, (2) likelihood and seriousness of its side effects, and (3) defendant's prognosis with and without medication.

The guardian must also notify the court when the defendant's competency has been restored. The court must then hold a hearing within 10 days to determine whether to resume the trial. The act permits the court also to determine at the hearing whether it is appropriate to order that an existing involuntary medication order remain in place. It requires the court to obtain a supplemental report from the health care guardian before any hearing in which this issue is likely to arise. The supplemental report must update prior reports and address the same medical issues.


The act sets the same legal standard for continuing medication orders as already applies to involuntary orders intended to restore competency. The court must consider the health care guardian's supplemental report and recommendations and find, by clear and convincing evidence, that:

1. the seriousness of the criminal charges are such that the state's interest in fairly and accurately determining the defendant's guilt or innocence outweighs the defendant's interest in self-determination;

2. to a reasonable degree of medical certainty, the defendant will remain competent to stand trial if involuntarily medicated;

3. there is no less intrusive way to adjudicate the defendant's guilt or innocence;

4. the proposed medication regimen is narrowly tailored to minimize intrusion on the defendant's liberty and privacy interests; and

5. the regimen will not unnecessarily risk the defendant's health.

The court must obtain supplemental reports and conduct hearings every 180 days for as long as the order is in place. It may extend an involuntary medication order so long as there is clear and convincing evidence to support the five required findings described above.



The law recognizes two types of competence in criminal cases: competency to stand trial and competency to consent, or withhold consent, to psychiatric treatment, including medication. Different standards apply to each.

A defendant is competent to stand trial if he understands the court proceedings and can participate or assist in his defense. The law presumes that all defendants are competent, but requires hearings if this comes into question.

A defendant may be competent to stand trial but too mentally ill to make medical decisions independently (i. e. , incompetent to give or withhold consent knowingly and voluntarily). When a court is considering whether to order the defendant to take psychiatric medication, the law requires it to first appoint a health care guardian to represent the defendant's medical interests. The guardian must be a licensed health care provider with specialized training in treating people with psychiatric disabilities.

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