Forced Drugging Case Headed to Supreme Court
By Robert B. Bluey Staff Writer
November 29, 2002

( - For more than four years, Missouri dentist Charles Sell has waited in a federal prison for his trial on charges of Medicaid fraud, and the delay is attributed to the government's persistent argument that Sell is not mentally competent to stand trial unless he is forcibly drugged.

This spring Sell will get his day in court. The U.S. Supreme Court has decided to take up the case, and might also make a definitive decision about forcing prison inmates and others to take mind-altering drugs.

Not only will the highest court in the land rule on Sell's fate, but a coalition of civil liberties organizations and a physicians' group have called the case one of the most significant on the court's docket this year for the resolution it could bring to the forced drugging debate.

"If all the government has to do is file charges without proving them in order to drug someone, then nobody is safe from government intimidation," said Andrew Schlafly, general counsel for the Association of American Physicians and Surgeons. "If the government has that power, then it has enormous leverage to intimidate defendants, witnesses and just about everybody."

The physicians' group has joined forces with the conservative Eagle Forum and the American Civil Liberties Union to argue against forced drugging. The Justice Department has defended the government's policy, and recently emerged victorious before the U.S. Court of Appeals for the Eighth Circuit.

Sell is being held at the Medical Center for Federal Prisoners in Springfield, Mo., and while lawyers say there's no solid evidence that Sell is now being forcibly drugged, he's spent more than 1,500 days in custody with no trial. The state has diagnosed Sell as having what it calls a "delusional disorder."

If the court agrees with the government's argument, Schlafly said it would amount to a huge loss of liberty. He also warned that several states are currently developing responses to bio-terror attacks that would involve widespread vaccinations for smallpox and other diseases.

But there is also hope in the court's willingness to hear the case. There are conflicting decisions by two federal appeals courts -- typically one reason the court will review a case -- and the circumstances of Sell's imprisonment might appear outrageous to some of the justices, Schlafly said.

By striking down the government's argument, the court could give Americans greater choice, and the power to decide what vaccines children receive after birth, said Eagle Forum lawyer John Schlafly, who is Andrew's brother. Both are sons of Eagle Forum founder Phyllis Schlafly.

"We are moving rapidly to a point where dozens of vaccinations are being required by the government for everybody," John Schlafly said. "Each vaccination should be voluntary or injected with the informed consent of the patient for good medical reasons."

But an advocate of medicating the mentally ill said Sell and other inmates should be given drugs "if the treatment is medically appropriate," for the sake of the inmate's mental health.

"Within the circumstances of the case, we think he should be medicated," said Jonathan Stanley, assistant director of the Treatment Advocacy Center, which is not involved in the case. "To leave someone riding in psychosis indefinitely, that's almost the ultimate penalty."

Stanley, who has bipolar disorder, said he knows from personal experience that there is nothing worse than being in a state of psychosis, which is why his group promotes programs that place people in treatment despite their desire to avoid it.

The circumstances facing Sell are not ideal, Stanley said, which leaves the government in a difficult situation.

"Clearly, if he doesn't meet the standard to contribute to the trial, work with his lawyers and understand the charges, then he's not rationale," Stanley said. "This isn't the last justification I would be looking for to get the treatment, but it just so happens in this case that it sounds like [Sell] is pretty sick."

While Sell's situation is obviously at the forefront of the Supreme Court case, Stanley does not think that case will have as big an impact as AAPS and other groups are predicting.

Sell was originally charged in May 1997 with making false representations in connection with payments for health care services, according to court records. Prosecutors accused him and his wife of submitting false claims to Medicaid and private insurance companies for work never completed.

He was released on bond, but then in January 1998, a warrant was issued against him for allegedly violating the terms of that agreement.

It was not until February 1999 when Sell's mental competency came into play. Both Sell's psychologist and the government psychologist diagnosed him with a delusional disorder, which was followed by a hearing that determined he was incompetent to stand trial, according to court records.

What has followed during Sell's time in prison under the watch of government psychiatrists is not exactly clear, said Dr. Jane M. Orient, executive director of AAPS.

She said some of the biggest fears of forced drugging involve the harmful side effects that can result from exposure to certain medications. Some of the drugs most commonly used to treat mental illness include Thorazine, Clozapine and Haldol, all of which can pose irreversible health problems to individuals if not properly prescribed, Orient said.

"The neurological side effects can be extremely distressing," she said. "They can cause a person to have involuntary movements that are quite disabling. They have constant chewing motions or constant grimacing, sticking their tongue out and other bizarre posturing and motions that just occur all day long."

But side effects should not be a primary factor in this case, she said, since giving inmates drugs against their will is of greater concern. Orient said the secretive nature of prisons is also troubling, which gives the government great powers without much oversight -- the same fears that worry the civil liberties groups.

"This would give the prosecutors far too much authority," she said. "This could be used as a form of torture -- either do what they want or they'll keep giving you drugs. Government should not have the right to intrude into your mind. It's a very dangerous power."

No hearing date has been set for the case, but it will take place after the court returns in January for the spring term. It is called Sell v. United States.

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