Prisoners Right to Refuse Treatment in California
The Court stated in Alcocer v. Superior Court (1988) 206 Cal. App. 3d 951, 957:
"A right that is imposed, as compared to a right that is chosen, is an impoverished right. A right derives its significance and vitality from its being chosen. (See Matter of Quinlan (1976) 70 N.J. 10 355 A.2d 647, 79 A.L.R.3d 205.) John Stuart Mill observed: 'in each person's own concerns his individual spontaneity is entitled to free exercise. Considerations to aid his judgment, exhortations to strengthen his will may be offered to him, even obtruded on him, by others; but he himself is the final judge. All errors which he is likely to commit against advice and warning are far outweighed by the evil of allowing others to constrain him to what they deem his good.' (Mill, On Liberty (Bobbs-Merrill ed. 1956) p. 93.)"
The right to refuse treatment is independent of the state's obligation to adequately treat the mentally ill. Under Penal Code section 2600, a prisoner is "entitled to a judicial determination of his competency to refuse treatment before he can be subjected to long-term involuntary psychotropic medication. . . ." (Keyhea v. Rushen (1986) 178 Cal. App. 3d 526, 542.)
The parties in Keyhea agreed that "'long-term' medication within the context of the issues . . . is . . . medication in excess of 10 days." (Id., at p. 532, fn. 3.)
In Keyhea v. Rushen (1986) 178 Cal. App. 3d 526, the trial court issued an injunction compelling the state to adjudicate mental competency prior to subjecting prisoners to long-term involuntary medication. In upholding the lower court's order, the court of appeal, finding "forced drugging to be one of the earmarks of the gulag," held that section 2600 encompassed the statutory right of non-prisoners to refuse or to consent to medical treatment. (Keyhea v. Rushen, supra, 178 Cal. App. 3d 526, 542.)
Keyhea declared the Lanterman-Petris-Short Act (LPS) to be the "sole mechanism" for allowing the involuntary psychotropic medication of inmates and applicable to prisoners. ( Id., at p. 541.)
Section 2600 currently provides, in pertinent part: "Nothing in this section shall be construed to permit the involuntary administration of psychotropic medication unless the process specified in the permanent injunction, dated October 31, 1986, in the matter of Keyhea v. Rushen, 178 Cal. App. 3d 526, 223 Cal. Rptr. 746, has been followed. The judicial hearing for the authorization for the involuntary administration of psychotropic medication . . . shall be conducted by an administrative law judge. . . ."
"By specifically referring to the Keyhea injunction in section 2600, the Legislature has expressly endorsed the injunction's standards for involuntary medication. . . ." (Department of Corrections v. Office of Administrative Hearings (1998) 66 Cal. App. 4th 1100, 1108; see also Department of Corrections v. Office of Administrative Hearings (1997) 53 Cal. App. 4th 780 psychiatrist may be appointed by administrative law judge to assist inmate and counsel in responding to medication order.)