If Sanity Is Forced on a Defendant,
Who Is on Trial?

By DAPHNE EVIATAR


Charles Thomas Sell has a long history of
mental illness. He has told doctors that his
gold fillings were contaminated by
Communists, and he once called the police to
report that a leopard was boarding a bus
outside his office.

When he appeared at a bail hearing after his
indictment for Medicaid fraud five years ago,
he screamed, cursed and spat in the judge's
face when she tried to tell him his rights.

After a diagnosis of "delusional disorder,
persecutory type," Dr. Sell was deemed
incompetent to stand trial in April 1999 and
was imprisoned in a psychiatric institution.

But could the government make him take
antipsychotic medication so he could be
tried? On Monday the Supreme Court said it
was possible, but only in special
circumstances. After setting out a list of
relevant factors, including the probable
effects of the drugs and the importance of
trying the case, the court sent it back to
the trial court to apply the standards.

While the court's ruling settled some legal
issues, it did little to resolve the larger
philosophical questions in the case: how does
one define free thought and individual
identity in an age when technology has
provided the tools to radically alter them?
What is the dividing line between the mind
and body? What is the nature of personal
autonomy?

To many, the idea of forcing someone like Dr.
Sell who has been deemed neither dangerous
nor incompetent to determine his own medical
treatment to take mind-altering drugs
solely for a government proceeding raises the
specter of Orwellian "thought police" or a
Brave New World of drug-induced complacency.
"Over himself, over his own body and mind,
the individual is sovereign," John Stuart
Mill wrote in his celebrated 1859 essay, "On
Liberty."

In their brief to the Supreme Court, Dr.
Sell's lawyers argued, "The right to be free
from unwanted physical and mental intrusions
has long been recognized as an integral part
of an individual's constitutional freedom."
Ethan Nadelmann, the executive director of
the Drug Policy Alliance, which submitted a
brief in the Sell case, agreed. "If you think
about the most fundamental freedoms in this
country," it said, "those freedoms are
ultimately meaningless unless we assume some
underlying freedom of consciousness."

But defining freedom of consciousness for
someone who is mentally ill is tricky. Do
psychotropic drugs distort the individual's
personality, the existential self? Or do they
do the opposite, as the government argued,
and restore a delusional mind to its pristine
state?

Not even mental health experts agree on this.
The American Psychiatric Association, which
supported the government, argued that mental
illness is a physical disease that should be
treated like any other. "The brain is an
organ just like the liver is an organ and the
heart is an organ," said Dr. Renee Leslie
Binder, a psychiatrist who advised the
association on its court brief. "If someone
has an infection, you don't tell them to
breathe deeply. You give them antibiotics to
fight the infection. When someone has a brain
disease, the main form of treatment is
medication."

The American Psychological Association,
though, emphasized the importance of seeking
alternatives. Its brief supporting Dr. Sell
said these drugs "operate on the individual's
thought processes and thus implicate
fundamental issues of personhood and
individuality."

The conflict has essentially come up against
the age-old mind-body problem. If the mind is
fundamentally different from the rest of the
body, the government's and psychiatric
association's purely medical view of the
issue misses the point.

"The American Psychiatric Association has
embraced a somewhat reductionist approach to
understanding human life," said Christian
Perring, chairman of the philosophy
department at Dowling College, whose research
focuses on the philosophy of psychiatry. "If
you understand a person simply in terms of
brain functions, you miss a lot. A large
number of philosophers and even psychiatrists
feel that loses sight of understanding a
person as a whole person and in the context
of a larger community."

The notion of autonomy is also critical to
philosophical discussions of the right to
refuse treatment. Although the idea
originally referred to political governance
of states, it is now often applied to
individuals and understood as "acting on
one's own considered or reflective desires,"
explained William Ruddick, professor of
philosophy and adjunct professor of
psychiatry at New York University.
Philosophers generally agree that "autonomy
can be overridden when its exercise harms
others," Mr. Ruddick said. Although Dr.
Sell's crime arguably harmed others, his
refusal of medication, Mr. Ruddick notes,
does not. Therefore "it would be a clear
violation of his autonomy to override his
refusal in order to adjudicate the admittedly
serious charges against him."


That's also the view of the Center for
Cognitive Liberty and Ethics, a
California-based organization whose mission
is to defend mental autonomy in the face of
modern technology. To the center, the
forcible injection of mind-altering drugs is
nothing less than government mind-control.
Richard Glen Boire, counsel for the center,
said the government is claiming "the right to
make you think a certain way or not be able
to think certain thoughts." He added: "Dr.
Sell's case is exactly that. He's posing no
harm. They want to use one of these drugs to
make him think differently."

Dr. Sell's lawyers made the same point. "The
content of Dr. Sell's thoughts is precisely
the reason the government seeks to medicate
him," Dr. Sell's lawyers wrote to the court.
"The very purpose of the government's efforts
is to change Dr. Sell's thought and speech so
that he does not evidence persecutory
delusions."

Dr. Sell has said that the F.B.I. is plotting
to kill him, that the Branch Davidian
Compound at Waco, Tex., was intentionally
burned by government agents, and that the
F.B.I. fabricated the criminal charges
against him and sent him to Alaska to silence
him. "While Dr. Sell's view of the world and
political beliefs may seem unusual in these
respects," his lawyers wrote, "until Dr. Sell
is adjudged incompetent to make medical
decisions, he must be permitted to think his
thoughts and speak his mind even if the
government does not like what he thinks or
says."

Indeed, not only should someone be free to be
mentally ill, but there may even be social
benefits to such "diverse thinking," Dr.
Sell's lawyers argue. As they wrote to the
court, Ludwig van Beethoven, Isaac Newton and
Ernest Hemingway all suffered from mental
illness. They quoted Emily Dickinson:

Much madness is divinest sense
To a discerning eye;
Much sense the starkest madness.
'Tis the majority
In this, as all, prevails.
Assent, and you are sane;
Demur, you're straightway dangerous,
And handled with a chain."

Yet even if the government succeeds in
convincing a lower court that Dr. Sell should
be brought to trial, that creates a
conundrum: what if Dr. Sell was deluded when
he supposedly bilked the government of
Medicaid money? In other words, if Dr. Sell's
mind is chemically altered for his trial, is
the government trying the same person?

"You are trying a different defendant in the
sense that the medications can often have a
transforming effect on personality," said M.
Gregg Bloche, a psychiatrist and law
professor at Georgetown University.

Indeed, whether psychotropic drugs change a
person's identity is vexing scholars, who
debated the issue at the annual conference of
the Association for the Advancement of
Philosophy and Psychiatry last month in San
Francisco.

Dr. Lester Grinspoon, emeritus associate
professor of psychiatry at Harvard Medical
School and editor of the Harvard Mental
Health Letter, is disturbed by the
implications in this case. "It says in effect
that whatever his disorder is, we can get rid
of that for the moment and it's clear that
this man is responsible for the crime. But
even if you are treating this man's paranoid
delusions, he is still a paranoid person. His
behavior, to the extent it came out of that
paranoia, can't be treated in retrospect. It
just doesn't make sense to make somebody
competent to stand trial for a crime he
committed while he suffered from the
disorder."

Paradoxically, Dr. Sell is probably more
likely to go free if he does consent to the
drugs. He has already been locked up for more
than five years while his objection to the
government's forced medication plan has wound
its way to the Supreme Court. That's longer
than he would have served if he had been
convicted of all fraud charges.

Original at:
http://www.nytimes.com/2003/06/21/arts/21SELL.html?pagewanted=