STATE OF WASHINGTON, ET AL., PETITIONERS V. WALTER HARPER No. 88-599 In The Supreme Court Of The United States October Term, 1988 On Writ Of Certiorari To The Supreme Court Of Washington Brief For The United States As Amicus Curiae Supporting Petitioners TABLE OF CONTENTS Question Presented Interest of the United States Statement Introduction and summary of argument Argument: Due process does not require an adversarial judicial hearing before a medical professional can administer antipsychotic medication to a mentally ill and dangerous prisoner against his will A. Antipsychotic medication may be administered to a mentally ill prisoner against his will in order to prevent him from endangering himself or others B. Due process does not require a judicial hearing before a medical professional may order antipsychotic medication to be administered to a mentally ill and dangerous prisoner Conclusion QUESTION PRESENTED Whether a mentally ill and dangerous prisoner has a due process right to refuse antipsychotic medication in the absence of findings, made after an adversarial judicial hearing, that the prisoner is incapable of deciding for himself whether to take the medication and that the medication is in his best interest. INTEREST OF THE UNITED STATES The United States has an interest in this case for two reasons. First, the federal Bureau of Prisons operates four facilities for the treatment of persons charged with or convicted of a crime who suffer from a mental disease or defect. Psychiatrists at those facilities are confronted with the question whether to administer antipsychotic medication against an inmate's will. That problem has produced litigation to which the United States is a party. See, e.g., United States v. Charters, 863 F.2d 302 (4th Cir. 1988) (en banc), petition for cert. pending, No. 88-6525; United States v. Leatherman, 580 F. Supp. 977 (D.D.C. 1983), appeal dismissed, 729 F.2d 863 (D.C. Cir. 1984) (Table). Second, the United States has the responsibility under the Civil Rights of Institutionalized Persons Act, 42 U.S.C. 1997-1997j, to bring suit to protect the constitutional rights of persons in mental institutions, and the United States has participated in cases involving the involuntary use of antipsychotic drugs on such persons. E.g., R.A.J. v. Miller, 590 F. Supp. 1319 (N.D. Tex. 1984); Davis v. Hubbard, 506 F. Supp. 915 (N.D. Ohio 1980). Thus, the federal government has an interest both in ensuring that physicians can prescribe antipsychotic medication when it is appropriate to do so, and in seeing that there are adequate safeguards to protect the rights of patients against the improper use of such medication. STATEMENT 1. Antipsychotic drugs have been used for the past 35 years to treat various forms of psychosis. Antipsychotic drugs cannot cure mental illness, but they are recognized to be an effective means of treating the symptoms of psychoses such as schizophrenia. They organize a psychotic's cognitive processes, eliminate or suppress the more florid manifestations of his illness (e.g., hallucinations and delusions), and counteract assaultiveness, severe excitement, or withdrawal. Those antisymptomatic effects are themselves therapeutic, and they also enable the psychotic to profit from other forms of treatment, such as psychotherapy, to adjust socially within and outside a structured hospital environment, and perhaps ultimately to avoid a lifetime of institutionalization. /1/ For those reasons, there is widespread recognition in the psychiatric community that, despite the potential risks from the use of antipsychotic medication, such drugs are an appropriate form of treatment for certain seriously ill patients. In fact, some experts in the field have expressed the view that antipsychotic drugs "remain the primary modality in the treatment of an acute episode or an acute exacerbation of a schizophrenic illness," Kane, Treatment of Schizophrenia, 13 Schizophrenia Bull. 133, 134 (1987), and that "the use of available antipsychotic agents continues to be the cornerstone of management for these serious and disabling mental illnesses," Baldessarini & Lipinski, Risks of Antipsychotic Drugs Overemphasized, 305 N.E.J. Med. 588, 588 (1981). /2/ While antipsychotic drugs have widely acknowledged benefits, it is also recognized that they can cause a variety of side effects. /3/ Most potential side effects are mild, they disappear when the medication is discontinued, and they can be treated with other drugs. /4/ Some of the side effects, however, can be serious. The most troublesome potential side effect is tardive dyskinesia. /5/ Tardive dyskinesia is characterized by involuntary muscular, tic-like actions, such as continuously chewing, smacking the lips, contorting the face, or moving the hands and legs. It is painless, but obviously can be very distressing. Tardive dyskinesia ordinarily appears only after prolonged drug treatment (months to years), /6/ and may be mild or severe. It is impossible to predict its occurrence, but some estimates are that approximately 20 percent of persons receiving long-term treatment may be affected. /7/ Some forms of dyskinsia may be reversible if medication is halted or if other drugs are also used. /8/ But there is disagreement within the psychiatric community on that issue, and on others as well. /9/ As the en banc Fourth Circuit recently summarized: "Without exhaustive analysis of the scientific literature before us documenting these side-effects and their statistical probability, it suffices to observe that while there is universal agreement in the relevant professional discipline that the side-effects always exist as a risk, there is wide disagreement within those disciplines as to the degree of their severity, their susceptibility to treatment, their duration, and, most significantly, their probability over the run of cases." Charters, 863 F.2d at 310-311. 2. In 1976, respondent Walter Harper pleaded guilty to robbery and was sentenced to 20 years' imprisonment. /10/ He has been alternatively diagnosed as suffering from schizophrenia, schizoaffective disorder, and manic depression, and he has a history of assaultive behavior, which physicians have attributed to his illness. Respondent was primarily confined in the mental health unit, and on several occasions he was transferred to a state hospital for evaluation and treatment. /11/ Respondent was paroled in 1980 on the condition that he participate in outpatient psychiatric treatment. While on parole, respondent was twice committed to a hospital for psychiatric treatment. Respondent's parole was revoked in December 1981 after he assaulted two hospital staff members. Pet. App. A2-A3, B4, B5. Upon returning to prison, respondent was transferred to the Special Offender Center (SOC), a 144-bed state institution that employs psychiatrists, psychologists, and therapists to treat convicted felons with serious mental or behavioral disorders. Respondent voluntarily participated in treatment at the SOC, including the receipt of antipsychotic medication from January to February 1982 and from May to November 1982. At that point, however, respondent refused further medication. Respondent's treating physician then sought to medicate respondent over his objection pursuant to the SOC policy regarding the involuntary administration of antipsychotic drugs. Pet. App. A3, B4-B5. /12/ That policy has several components: First, a prisoner can be involuntarily medicated only if he suffers from a "mental disorder" /13/ and is "gravely disabled" /14/ or if he poses a "likelihood of serious harm" to himself, others, or their property. /15/ Pet. App. A9 n.7, B3; SOC Policy 1. Second, medication must be ordered by, or in the case of emergencies approved by, a psychiatrist. /16/ If an inmate refuses medication, it cannot be administered until it is approved by a hearing committee consisting of a psychiatrist, a psychologist, and the SOC associate superintendent. The attending physician must prepare for the committee an evaluation of the inmate, which documents the inmate's mental condition, the risk that he will injure himself or others, the methods used to persuade him to accept medication voluntarily, and his response to those efforts. The committee decides by majority vote whether a prisoner is gravely disabled or dangerous, but the psychiatrist must be in the majority for the medication to be approved. None of the committee members may be currently involved in the prisoner's diagnosis or treatment, but a former treating physician may sit on subsequent review panels. Pet. App. A7, B3; SOC Policy 2-3. Third, the prisoner has certain procedural rights prior to and at the hearing. He must receive 24 hours' notice of the hearing, during which time he may not be medicated. He must also be given notice of the tentative diagnosis, the data reflecting the factual basis for that diagnosis, and the reason medication is deemed necessary. Before the hearing begins, the committee consults with the staff outside the patient's presence to determine whether the SOC policy requirements have been satisfied and what the staff position will be at the hearing. The staff presents its reasons why the patient is considered dangerous and why his condition is believed to be the product of his mental disorder. At the hearing, the prisoner has the right to be present, to present evidence (including witnesses), and to question the institution's witnesses. A prisoner is not given counsel, but an inmate has the right to an adviser not previously involved with the case who understands the psychiatric issues that the case may raise. The inmate is excused during the committee's deliberations, but he is returned for its decision. Minutes of the hearing must be kept and a copy provided to the inmate. An inmate may appeal the committee's decision to the SOC superintendent within 24 hours, and the superintendent must act on the appeal within 24 hours of its receipt. A prisoner may seek judicial review in state court of the decision to medicate him. Pet. App. A6-A7, B6, B8-B9; SOC Policy 4-6. Fourth, a course of medication must be periodically reviewed. At the time of respondent's treatment, the committee would re-examine each inmate's case after seven days of treatment. If the committee reapproved medication, the treating psychiatrist had to review the prisoner's case and prepare a report for the Department of Corrections medical director every 14 days throughout the prisoner's course of treatment. Pet. App. B4. /17/ Those procedures were followed in respondent's case. Two physicians and the SOC associate superintendent sat on the special hearing committee. Respondent was present and was assisted by a nurse practitioner from another institution. The committee found that respondent was a danger to others due to a mental disease or disorder, and it authorized respondent's involuntary medication. Respondent appealed the committee's decision to the SOC superintendent, who upheld the committee's findings. Respondent was treated for approximately one year beginning on November 23, 1982, during which time his case was periodically reviewed as required by the SOC policy. Respondent received a variety of antipsychotic drugs that have various potential short- and long-term side effects, some of which respondent may have exhibited. Pet. App. A3-A4, A7, B5-B6, B8. /18/ In November 1983, respondent was transferred from the SOC to a reformatory, where he did not take his medication. His mental condition deteriorated, and he was returned to the SOC in December 1983. After another hearing, the committee decided to resume respondent's medication. Treatment continued until June 1986, when respondent was transferred to a state prison. Throughout that period, respondent's condition was reviewed in accordance with the SOC policy. Each time, his medication was continued, although the specific drugs or dosages were sometimes changed. Pet. App. A3, B5-B7. /19/ 3. In February 1985, respondent brought this action in state court under 42 U.S.C. 1983, claiming that the failure to provide him with a judicial hearing before he was involuntarily medicated violated the Due Process, Equal Protection, and Free Speech Clauses of the federal and state constitutions, as well as state tort law. J.A. 7-8. Following a bench trial, the court held that respondent had a liberty interest in not being involuntarily subjected to antipsychotic medication, but that the SOC policy satisfied due process requirements under Vitek v. Jones, 445 U.S. 480 (1980). Pet. App. B8-B9. 4. Respondent appealed, and the Washington Supreme Court reversed, holding that respondent was entitled to a judicial hearing before again being involuntarily medicated. Pet. App. A1-A13. Like the trial court, the Washington Supreme Court held that respondent had a liberty interest in not being treated with antipsychotic medication. Id. at A4-A6. But the court held that the procedures guaranteed by Vitek were insufficient and that a judicial hearing is required before a prisoner can be given antipsychotic medication involuntarily. Ibid. The Washington Supreme Court further held that a court can order a prisoner to be treated with antipsychotic drugs against his will only if the State can show by "clear, cogent, and compelling evidence" that there is a compelling interest in using antipsychotic drugs in the prisoner's treatment and that the use of the drugs is necessary and will be effective to further that interest. Id. at A10, A11. The court indicated that the State could establish a compelling interest by showing, for example, that the medication is necessary for the "(1) preservation of life; (2) protection of third parties' interests; (3) prevention of suicide; and (4) maintenance of the ethical integrity of the medical profession." Id. at A10. If the State proves a compelling need for medication, the court must then decide whether that treatment is necessary and effective, a decision that requires consideration of the inmate's prognosis with and without the medication, and under alternative treatments. Ibid. The court must then consider the inmate's own wishes, including his "previous and current statements," his "religious and moral values" regarding medical treatment in general and antipsychotic drug treatment in particular, and the "views of individuals that might influence the patient's decision." Id. at A10-A11 (citation omitted). If the prisoner is unable fully to understand the nature of the hearing, "as severely mentally ill patients often are," the court must substitute its judgment for that of the prisoner. Id. at A11. The Washington Supreme Court also dictated the procedures required at the judicial hearing. The court held that as a matter of due process the inmate must be afforded the following rights: (1) reasonable notice of the hearing; (2) the right to be present; (3) the right to be represented by counsel; (4) the right to present evidence; (5) the right to cross-examine witnesses; (6) the right to remain silent; (7) the right to have the proceeding conducted in accordance with the rules of evidence; and (8) the right to examine and copy all documents in the court's file. Pet. App. A11. Finally, the court held that the court assigned to the matter may impose "such time limits and conditions" on the use of antipsychotic medication "as are appropriate under the circumstances of the case." Ibid. /20/ INTRODUCTION AND SUMMARY OF ARGUMENT The Washington Supreme Court held that, at least in the absence of an emergency, only a court can order the involuntary administration of antipsychotic drugs to a mentally ill and dangerous prisoner. Moreover, the court held that such treatment may be ordered only after an adversary judicial hearing at which the State must establish that the inmate would choose that treatment if he were competent, or that the treatment, in the court's opinion, is in the inmate's best interest. That analysis, we submit, is wrong. /21/ The question whether antipsychotic drugs may be prescribed for an unwilling patient has substantive and procedural aspects. Mills v. Rogers, 457 U.S. 291, 299 (1982). The substantive aspect involves the determination whether the patient has a liberty interest in refusing such treatment, and whether the interests supporting treatment can outweigh the patient's interest in refusing it. The procedural component of that question involves the way in which the determination is made as to whether a particular individual should be involuntarily medicated. A. In our view, the involuntary administration of antipsychotic drugs affects a constitutionally protected liberty interest, but antipsychotic medication may nonetheless be involuntarily administered to a prisoner who is gravely disabled by his mental illness. The SOC treatment policy creates a liberty interest in the inmate not to receive antipsychotic drugs against the inmate's will. Even apart from the SOC policy, however, an inmate generally enjoys such a liberty interest, because of the effects of the drugs on mentation and behavior, and because the drugs pose a risk of potentially severe and permanent side effects. Balanced against that interest, however, are the interests of others in personal security as well as the interest in helping the inmate overcome his illness. In light of the substantial agreement in the medical profession that antipsychotic drugs can be effective in treating at least some forms of serious mental illness, the interests in administering treatment can overcome the inmate's liberty interest in appropriate cases. B. The question whether medication should be ordered in a particular case is a clinical decision that should be made by a physician, not a judge. For that reason, the Washington Supreme Court erred in holding that due process forbids the administration of antipsychotic medication against an inmate's will unless the course of treatment is approved by a court. In Parham v. J.R., 442 U.S. 584 (1979), and Youngberg v. Romeo, 457 U.S. 307 (1982), this Court held that a judicial hearing was not necessary before medical professionals could make treatment decisions about a mentally disabled patient. When fairly debatable treatment decisions are at issue, Parham and Youngberg dictate that a court should show deference to the judgment of a qualified professional and limit the judicial role to determining whether professional judgment was in fact exercised in the particular case. The Washington Supreme Court envisioned a much greater role for the court in reviewing the treatment recommendations of the treating physicians; it therefore insisted on more than is required by the governing due process principles. The procedures set forth in the SOC policy are sufficient to satisfy any possible due process objection. Under the SOC policy, treatment decisions are reviewed by a panel of medical professionals, the inmate is given notice and an opportunity to participate in the hearing, he is advised of the diagnosis and the reasons for the proposed treatment, and he is provided with a medical professional to assist him in presenting his views. The additional measures ordered by the Washington Supreme Court, such as the assistance of counsel and the disqualification from reviewing responsibility of any physician who had previously treated the inmate, would not contribute significantly to the accuracy of the treatment determination. Those measures are therefore not essential elements of due process in this setting. ARGUMENT DUE PROCESS DOES NOT REQUIRE AN ADVERSARIAL JUDICIAL HEARING BEFORE A MEDICAL PROFESSIONAL CAN ADMINISTER ANTIPSYCHOTIC MEDICATION TO A MENTALLY ILL AND DANGEROUS PRISONER AGAINST HIS WILL A. Antipsychotic Medication May Be Administered To A Mentally Ill Prisoner Against His Will In Order To Prevent Him From Endangering Himself Or Others 1. The question whether respondent has a liberty interest that is implicated by the use of antipsychotic drugs should be answered in the first instance by reference to state law, such as the SOC policy. Mills, 457 U.S. at 305; Vitek, 445 U.S. at 488-491. That policy imposes substantive and procedural limits on involuntary drug treatments. In that respect, the SOC policy is similar to the statute considered in Vitek, which placed restrictions on transferring an inmate to a mental hospital, and Vitek held that the statute created a liberty interest against arbitrary transfers. Id. at 488-491. The SOC policy therefore creates a similar liberty interest against arbitrary medication. Even if state law did not create a liberty interest, we believe that a prison inmate ordinarily retains a liberty interest in not receiving antipsychotic medication against his will. That is true even as to an inmate who is properly confined in a mental ward or hospital, because the decision to commit a prisoner to a mental ward or hospital does not necessarily encompass the judgment that the prisoner should be subjected to treatment with antipsychotic drugs. First, antipsychotic drugs are prescribed only for severely mentally ill patients. A State, however, may transfer prisoners with lesser degrees of mental illness to a psychiatric facility. Thus, antipsychotic medication is not likely to be an appropriate treatment for every inmate in a prison mental hospital. Second, antipsychotic drugs differ in kind, not just in degree, from the types of restraints and stigmas normally associated with the finding that a person has committed a crime and that he is mentally ill, because those drugs have the potential for severe and lasting side effects. Prescribing such drugs for an inmate thus implicates an interest in bodily integrity of a kind historically recognized by the Anglo-American common law. /22/ Given the nature of the intrusion resulting from antipsychotic drugs, that interest is not extinguished by the fact of lawful confinement in a facility that serves all mentally ill prisoners. Thus, an inmate ordinarily has a residual liberty interest in not being treated with antipsychotic medication against his will, even if he is properly confined in a prison mental hospital. See DeShaney v. Winnebago County Dep't of Social Services, 109 S. Ct. 998, 1006 n.8 (1989). 2. Although a prisoner in a mental ward has a constitutionally protected interest in not being subjected to involuntary treatment with antipsychotic drugs, that interest can be overcome by competing interests invoked by the State. In Youngberg v. Romeo, supra, this Court held that a person involuntarily committed to an institution for the mentally retarded has a liberty interest in safety and freedom from bodily restraints. 457 U.S. at 315-316. At the same time, the Court recognized that, since those interests could conflict with each other or with similar interests of other persons at the institution, the inmate's liberty interest is not absolute and must be weighed against competing concerns. Id. at 320-321; see Jacobson v. Massachusetts, 197 U.S. 11, 29-38 (1905) (upholding compulsory smallpox vaccination despite its potential health risks). The same is true here. The interest of a gravely disabled prisoner in electing not to accept powerful medication and in avoiding the potentially harmful side effects of that medication must be balanced against the need to prevent that prisoner from harming himself, other prisoners, or the institution's personnel or facilities. The prisoner's liberty interest must also be weighed against the prospect that antipsychotic medication will alleviate the prisoner's suffering and return to him the ability to function in a more normal fashion both within and outside the hospital environment. The paramount concerns in running a prison or a prison mental health facility are maintaining institutional security, preserving internal order, and establishing a therapeutic environment. Prisons are places of involuntary confinement for individuals with "a demonstrated proclivity for antisocial criminal, and often violent, conduct," Hudson v. Palmer, 468 U.S. 517, 526 (1984), and "maintaining institutional security and preserving internal order and discipline are essential goals," Bell v. Wolfish, 441 U.S. 520, 546 (1979). A prisoner whose untreated mental illness can lead to violence poses a risk to others in several ways. The most obvious is that the prisoner may assault other inmates, staff, or visitors either spontaneously or due to some real or perceived provocation. Moreover, since a mentally ill prisoner is marked by inappropriate behavior, he may often be an inviting target for theft, assault, and other crimes by inmates who believe that he will prove to be easy prey and that hospital personnel will ignore his complaints because of his illness. If his illness renders him susceptible to persuasion, an inmate can also be used by manipulative prisoners as an unwitting accomplice or as a surrogate for their own crimes. Finally, it goes without saying that the interest in preventing violence and maintaining order is significantly amplified when an entire ward consists of mentally ill prisoners, as at the SOC. For these reasons, the courts have uniformly recognized that antipsychotic drugs can be prescribed on an emergency basis for a patient who poses an immediate threat to himself or others. /23/ Actual emergencies do not mark the limits of the interest in security. Hospital personnel must be able to protect against the risk, and not just the fact, of violence. It is well known that "(p)rison life, and relations between the inmates and prison officials or staff, contain the ever-present potential for violent confrontation and conflagration." Jones v. North Carolina Prisoners' Labor Union, 433 U.S. 119, 132 (1977). While medical personnel and correctional officials at a prison mental hospital may not act purely on speculation that a mentally ill prisoner may create a risk of danger, an inmate's personal or case history may include prior acts or threats of violence, or other symptoms indicating a serious potential for violence, and those officials must be concerned about that potential. A psychiatrist may be able to predict that an inmate is likely to act violently, see Barefoot v. Estelle, 463 U.S. 880, 896-902 (1983), but may find it quite difficult to foresee when that will happen. See Rogers v. Okin, 634 F.2d 650, 655-657 (1st Cir. 1980), vacated and remanded, Mills v. Rogers, supra; Schultz, The Boston State Hospital Case: A Conflict of Civil Liberties and True Liberalism, 139 Am. J. Psychiatry 183 (1982). Hospital personnel therefore must be able to take reasonable steps to forestall a threat of violence before it culminates in an assault. Of course, it may be possible to restrain a prisoner physically or to place a prisoner in isolation, but such measures will not always be feasible or preferable, particularly for a large number of inmates. And turning a mental ward into an armed camp hardly creates a supportive therapeutic environment. While restraints may be adequate as means of preventing a prisoner from injuring himself or others, antipsychotic medication in many cases may be the only means of serving both short- and long-term therapeutic goals. Medication may sometimes be the only effective treatment that can enable an inmate to escape indefinite, if not permanent, hospitalization in a closely supervised environment. In some cases, the failure to medicate a mentally ill patient can result in the irreversible progression of his disease, which by any objective standard can be a far more harmful consequence than the ordinary side effects of antipsychotic medication. For that reason, it is important to recognize that any treatment decision -- including the decision not to prescribe medication -- is a decision that may do great harm to the patient, perhaps irreversibly. The interests that compete with the inmate's liberty interest are therefore of the greatest potential importance to the welfare of others and, indeed, of the inmate himself. B. Due Process Does Not Require A Judicial Hearing Before A Medical Professional May Order Antipsychotic Medication To Be Administered To A Mentally Ill And Dangerous Prisoner 1. The next question is what procedures are necessary to decide the issues that arise in each case: e.g., whether antipsychotic medication is an appropriate treatment for a particular inmate, whether a specific medication will alleviate the symptoms of an inmate's illness, whether the potential side effects militate against that treatment, and whether a specific course of medication should be modified or discontinued. This Court's decisions in Parham and Youngberg are instructive on that point. Parham and Youngberg involved closely related issues of psychiatric commitment and treatment, and this Court did not require a judicial hearing before a medical professional could make clinical judgments about a person's mental condition and his likely response to treatment. Parham involved the question whether due process requires an adversary judicial hearing before a hospital may admit a mentally ill child at the request of his parents. This Court rejected any such requirement, holding that a parent's judgment that his child needs such care, coupled with an independent psychiatric finding to that effect, sufficiently ensures that a child will not be arbitrarily hospitalized. 442 U.S. at 606-613. In so ruling, the Court rejected "the notion that the shortcomings of specialists can always be avoided by shifting the decision from a trained specialist using the tools of medical science to an untrained judge or administrative hearing officer after a judicial-type hearing." Id. at 609. The reason is that "(c)ommon human experience and scholarly opinions suggest that the supposed protections of an adversary proceeding to determine the appropriateness of medical decisions for the commitment and treatment of mental and emotional illness may well be more illusory than real." Ibid. See also Secretary of Public Welfare v. Institutionalized Juveniles, 442 U.S. 640 (1979). In Youngberg, the Court held that the standard for reviewing the treatment decisions by medical personnel (there, a decision to restrain a mentally retarded patient) must take into account the fact that strict scrutiny of such treatment decisions would unduly interfere with the exercise of professional judgment as to the needs of residents. The Court explained that "there certainly is no reason to think judges or juries are better qualified than appropriate professionals in making such decisions." 457 U.S. at 322-323. Rather, "courts must show deference to the judgment exercised by a qualified professional," id. at 322, whose decision "is presumptively valid," id. at 323. For that reason, the Court held that "'the Constitution only requires that the courts make certain that professional judgment in fact was exercised,'" and that "'(i)t is not appropriate for the courts to specify which of several professionally acceptable choices should have been made.'" Id. at 321 (citation omitted). Accordingly, "liability may be imposed only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment." Id. at 323. The analysis in Parham and Youngberg is applicable here. The questions to be resolved in each case involve clinical decisions about the proper treatment for a specific prisoner. Because antipsychotic drugs are generally recognized as an acceptable treatment for mentally ill patients in at least some circumstances, the only question in a particular case is whether that generally appropriate treatment is indicated for a specific patient. And that is a quintessentially medical judgment. A court therefore should be reluctant to substitute its judgment for that of a physician, and due process does not require that a court be given that responsibility. That conclusion is sensible. An adversary judicial process is a valuable decisionmaking procedure when the dispute requires the decisionmaker to establish a new rule of law, or when legal questions predominate. Judges and lawyers are trained in the law and have expertise that helps to minimize the risk of error in such a decision. But when the question is whether a particular medication will successfully treat a mentally disordered inmate, psychiatrists are more likely to be able to minimize the risk of error than judges. Requiring a court to substitute its judgment for that of a mentally ill and dangerous prisoner or to rest its judgment on the prisoner's wishes is likely to be an exercise in futility. A "substituted judgment" approach assumes that it is possible to predict what a mentally ill person would do if he were competent. If a prisoner is incompetent, which the court below recognized is often the case with the severely mentally ill, Pet. App. A11, inquiring what his judgment would be if he were competent may amount to little more than camouflaging the court's own judgment by pretending that it is in effect the prisoner's. And permitting even a competent inmate to refuse medication that is necessary to prevent him from injuring others gives the inmate a veto over the equally important liberty interests of other inmates or persons at the facility or in the community. That price is too high. The proper approach is to rely on the professional judgment of the treating physician. That judgment should consider the accepted medical practices in diagnosis, prognosis, and treatment, and the use of such techniques and tools as are accepted and appropriate in the medical profession. Factors such as the inmate's medical history, his current mental status, the likelihood that he will become violent (and in what manner) without medication, his past responses to particular drugs, the possible side effects of a proposed medication, the prisoner's prognosis with and without medication, the ability of less potent drugs to achieve the same effect, and the duration of the past and proposed courses of medication, are among the relevant factors to be considered by a treating physician. Charters, 863 F.2d at 312. The physician's judgment is subject to judicial review, but the ultimate inquiry for the court should be whether the physician exercised his professional judgment, not whether the court believes the physician reached the wrong conclusion. 2. The Washington Supreme Court not only declined to adopt the "physician's professional judgment" as the appropriate standard, but also held that the procedures employed under the SOC treatment policy are constitutionally insufficient to support the determination to administer antipsychotic drugs over an inmate's objection. We submit that the elaborate procedures imposed by the court below are not essential to prevent arbitrary treatment decisions, and thus are not required by the Due Process Clause. Under the SOC administrative review procedure, two mental health professionals sit on the three-person review committee, the prisoner's treating physician is excluded, and the committee psychiatrist must vote with the majority before drugs can be prescribed. In addition, the inmate has various rights in connection with the hearing, and he can challenge the committee's decision both within the SOC and in state court. The committee must reconsider its initial decision after 14 days, and a physician must re-examine a course of medication on a bi-weekly basis thereafter. If treatment last for 180 days, the committee reviews the need for further medication. Thus, the SOC policy provides for both an independent initial decision by qualified professionals and a follow-up review process. That mechanism satisfies any possible constitutional objection. In both Parham and Vitek, this Court held in analogous settings that due process is satisfied if a decision to commit someone to a mental institution is reviewed by medical personnel at that facility, since that decision is "essentially medical in character," and "'neither judges nor administrative hearing officers are better qualified than psychiatrists to render psychiatric judgments.'" Parham, 442 U.S. at 607, 609 (citation omitted); see Vitek, 445 U.S. at 496; id. at 500 (Powell, J., concurring in part). The same analysis applies to the psychiatric judgment at issue in this case, and the procedures established by the SOC policy, which were modeled on the procedures approved in Vitek, are therefore constitutionally sufficient. See Project Release v. Prevost, 722 F.2d 960, 980-981 (2d Cir. 1983); Rennie v. Klein, 720 F.2d 266 (3d Cir. 1983) (en banc) (upholding similar procedures). Besides requiring an adversary judicial hearing before permitting the administration of antipsychotic drugs over the inmate's objection, the Washington Supreme Court found several other flaws in the SOC policy. We do not believe that any of those perceived flaws supports a valid due process objection. The state court found that the SOC policy could give rise to a conflict of interest due to the possibility that an inmate's former treating physician could sit on a review panel. Pet. App. A7. That possibility does not render the SOC policy facially invalid, and that criticism is not substantial in any event. A physician does not act as a legal adversary under the SOC policy, and there is no reason to assume that a psychiatrist will indefinitely and blindly adhere to his original clinical judgment if new facts come to light, or that a physician is incapable of impartially deciding whether to alter a course of medication that he once recommended. In fact, physicians routinely re-evaluate a patient's progress under an initial course of medication, and it is common for physicians to modify the prescribed medication after such a reassessment. Furthermore, given the number of psychiatrists and patients at a particular facility, it may be impossible always to avoid using a former treating physician on a review panel. The cost of hiring additional physicians for review panels would reduce the funds otherwise available for treatment, and therefore is a factor counseling against the requirement that a committee member have no prior involvement in a prisoner's case in order to be eligible to review his treatment. Cf. Parkham, 442 U.S. at 606. Similarly, due process does not require that the inmate be represented by counsel, as the Washington Supreme Court held. Because the answer to clinical questions "'turns on the meaning of facts which must be interpreted by expert psychiatrists and psychologists,'" Vitek, 445 U.S. at 500 (Powell, J., concurring in part) (citation omitted), "it is less than crystal clear why lawyers must be available to identify possible errors in medical judgment," Walters v. National Ass'n of Radiation Survivors, 473 U.S. 305, 330 (1985). A lawyer is a valuable assistant if a proceeding is governed by technical rules of procedure and evidence, or if a prisoner faces a professional prosecutor. Id. at 333; Powell v. Alabama, 287 U.S. 45, 69 (1932). But at a hearing conducted by medical personnel and directed at reaching conclusions about the medical benefits and risks of a particular treatment, an inmate has far less need for a legal assistant than for a medical expert. Cf. Walters, 473 U.S. at 334. The SOC policy supplies an inmate with a medical assistant and is therefore sufficient under Vitek. 445 U.S. at 497; id. at 500 (Powell, J., concurring in part). /24/ Finally, the court below erred in ruling that a prisoner may invoke his Fifth Amendment privilege against compulsory self-incrimination at the treatment hearing in order to avoid involuntary medication. In Allen v. Illinois, 478 U.S. 364 (1986), the Court held that a person may not invoke his privilege at a proceeding on the question whether he is subject to commitment as a "sexually dangerous person," since that proceeding was not "criminal" within the meaning of the privilege. The dispositive factors in Allen are also present here. First, the SOC policy treats medication hearings as civil in nature. See Allen, 478 U.S. at 368. The policy states that a prisoner may be involuntarily medicated only if he suffers from a "mental disorder" and is "gravely disabled" or presents a "likelihood of serious harm" to himself or others, and those terms are taken verbatim from the state laws governing involuntary civil commitment. Second, there is no suggestion in the SOC policy that treatment hearings are in fact criminal despite their label. Allen, 478 U.S. at 369. The SOC is a special facility that is designed to evaluate and treat inmates with serious behavioral or mental disorders, antipsychotic medication may be given only to certain mentally ill inmates, and treatment must be discontinued once a prisoner is no longer mentally disordered, gravely disabled, or likely to injure himself or others. See Allen, 478 U.S. at 369-370. Thus, although the SOC policy applies only to prisoners, it "does not appear to promote either of 'the traditional aims of punishment -- retribution and deterrence.'" Id. at 370 (citation omitted). The privilege against compulsory self-incrimination therefore may not be invoked to avoid the possibility of medication with antipsychotic drugs. CONCLUSION The judgment of the Supreme Court of Washington should be reversed. Respectfully submitted. WILLIAM C. BRYSON Acting Solicitor General PAUL J. LARKIN, JR. Assistant to the Solicitor General MAY 1989 /1/ See, e.g., American Psychiatric Ass'n, Task Force Report 18: Tardive Dyskinesia 123, 137-153 (1979) (hereinafter APA Task Force); Nat'l Inst. of Mental Health, Phenothiazine Treatment In Acute Schizophrenia, 10 Archives Gen. Psychiatry 246 (1964); Berger, Medical Treatment of Mental Illness, 200 Science 974 (1978); Davis, Overview: Maintenance Therapy in Psychiatry: I. Schizophrenia, 132 Am. J. Psychiatry 1237 (1975); Hogarty et al., Drug and Sociotherapy in the Aftercare of Schizophrenic Patients, 31 Archives Gen. Psychiatry 603 (1974); Jeste & Wyatt, In Search of Treatment for Tardive Dyskinesia: Review of the Literature, 5 Schizophrenia Bull. 25 (1979); Jeste & Wyatt, Therapeutic Strategies Against Tardive Dyskinesia, 39 Archives Gen. Psychiatry 803 (1982); Kane, Treatment of Schizophrenia, 13 Schizophrenia Bull. 133, 142 (1987); Kessler & Waletzky, Clinical Use of the Antipsychotics, 138 Am. J. Psychiatry 202 (1981); Meadow et al., Effects of Phenothiazines on Anxiety and Cognition in Schizophrenia, 36 Diseases of the Nervous System 203 (1975). /2/ See also Jeste & Wyatt, 5 Schizophrenia Bull. at 25 ("Pharmacotherapy is widely recognized as the single most effective treatment for schizophrenia. For most patients, it offers the advantages of higher reliability, greater effectiveness, easier accessibility, and fewer hazards than any other known treatment. Furthermore, the introduction of neuraleptics in the mid-1950's is believed to have played a major role in the ensuing dramatic declines in the number of hospitalized schizophrenics."). /3/ See generally APA Task Force 13-19; Ayd, A Survey of Drug-Induced Extrapyramidal Reactions, 175 J.A.M.A. 1054 (1961); Baldessarini, Clinical and Epidemiologic Aspects of Tardive Dyskinesia, 46 J. Clinical Psychiatry 8 (1985); Gutheil & Appelbaum, "Mind Control," "Synthetic Sanity," "Artificial Competence," and Genuine Confusion: Legally Relevant Effects of Antipsychotic Medication, 12 Hofstra L. Rev. 77, 105-117 (1983); Kennedy et al., Extrapyramidal Disorders After Prolonged Phenothiazine Therapy, 118 Brit. J. Psychiatry 509 (1971). /4/ One category of side effects, called extrapyramidal symptoms, includes drowsiness or fatigue (akinesia); the inability to sit still or an irresistible desire to walk or tap the feet (akathisia); acute and painful muscle spasms (dystonia); and conditions resembling Parkinson's disease, such as tremors, rigidity, or repeatedly moving one or both hands. Those side effects disappear if medication is discontinued, and they can be treated with other drugs. A second category of side effects includes dizziness, dry mouth and throat, blurred vision, weight gain, cardiovascular changes, low blood pressure, and depression. Those side effects are also temporary and treatable. R. Baldessarini, Chemotherapy in Psychiatry 43-44 (1977); APA Task Force 13-17; Gutheil & Appelbaum, 12 Hofstra L. Rev. at 108. /5/ Another hazardous side effect is neuroleptic malignant syndrome, which is characterized by rigidity, dance-like movements, and alterations in consciousness. It is quite rare, but can be fatal. It can be prevented by discontinuing medication, and it can be treated with other drugs. Addonizio et al., Symptoms of Neuroleptic Malignant Syndrome in 82 Consecutive Inpatients, 143 Am. J. Psychiatry 1587 (1986); Pope et al., Frequency and Presentation of Neuroleptic Malignant Syndrome in a Large Psychiatric Hospital, 143 Am. J. Psychiatry 1227 (1986). /6/ Jeste & Wyatt, Changing Epidemiology of Tardive Dyskinesia: An Overview, 138 Am. J. Psychiatry 297, 297 (1981); Kessler & Waletzky, Clinical Use of the Antipsychotics, 138 Am. J. Psychiatry at 205; Quitkin et al., Tardive Dyskinesia: Are First Signs Reversible?, 134 Am. J. Psychiatry 84 (1977). Tardive dyskinesia, however, has also been reported after several weeks or months of medication. /7/ Reports of the incidence of tardive dyskinesia have varied from 0.5% to 65%. See, e.g., APA Task Force 43-44; Crane, Persistent Dyskinesia, 122 Brit. J. Psychiatry 395 (1973). The wide variation in prevalence rates may be attributable to the failure to distinguish tardive dyskinesia from dyskinesia-like symptoms caused by withdrawal from antipsychotic drugs. See, e.g., APA Task Force 43-44 (roughly 10-20% of mental hospital patients and 40% of elderly, chronically institutionalized or outpatients exhibit more than minimal signs of tardive dyskinesia); Gardos & Cole, Overview: Public Health Issues in Tardive Dyskinesia, 137 Am. J. Psychiatry 776, 776-777 (1980); Gardos et al., Withdrawal Syndromes Associated with Antipsychotic Drugs, 135 Am. J. Psychiatry 1321 (1978); Kane & Smith, Tardive Dyskinesia, 39 Archives Gen. Psychiatry 473, 479 (1982) (tardive dyskinesia does not develop in 80% of patients and perhaps 25% of treated patients may have abnormal movements for independent reasons); Jeste & Wyatt, 138 Am. J. Psychiatry at 302-304 (36 studies from 1960-1980 show an overall incidence rate of 17.5% for tardive dyskinesia among chronically ill mental patients treated with antipsychotic drugs; after discounting reversible forms of dyskinesia, the prevalence of persistent dyskinesia attributable to antipsychotic drugs is about 13%). /8/ See, e.g., APA Task Force 44 (25-50% of cases are potentially reversible); Crane, Persistent Dyskinesia, 122 Brit. J. Psychiatry 395, 399 (1973) (early diagnosis and withdrawal of medication may contribute to recovery, but symptoms persist in a large number of patients); Jeste & Wyatt, 5 Schizophrenia Bull. at 26, 31 (tardive dyskinesia initially worsens after drug withdrawal, but it tends to disappear over time in a variable proportion of patients); Jeste & Wyatt, 138 Am. J. Psychiatry at 297, 303 (dyskinesia is reversible in more than one-third of all patients, and the rate of reversibility is likely to be higher among young patients than the elderly, but there is no satisfactory treatment for tardive dyskinesia); Jus et al., Long Term Treatment of Tardive Dyskinesia, J. Clinical Psychiatry 72 (Feb. 1979); Quitkin et al., 134 Am. J. Psychiatry at 84, 86 (first signs of tardive dyskinesia may be reversible). But see Gardos & Cole, 137 Am. J. Psychiatry at 780 (effectiveness of early intervention remains to be proved). /9/ For example, there is conflicting evidence on the relationship between cumulative drug dosage or the length of treatment and the prevalence of tardive dyskinesia. APA Task Force 51; Kane & Smith, 39 Archives Gen. Psychiatry at 475-476. The factors that contribute to a person's susceptibility are not clearly established, APA Task Force 51-52, but some have suggested that elderly and brain-damaged patients are more likely to have persistent dyskinesia, ibid.; Baldessarini, 46 J. Clinical Psychiatry at 10, 11; Jeste & Wyatt, 5 Schizophrenia Bull. at 25. /10/ Judgment and Sentence, State v. Harper, No. 3415 (July 30, 1976) (Book 4). "Book" refers to the discovery books that were submitted by the State in response to respondent's discovery requests and that were considered by the state trial court. Pet. App. B1. /11/ While confined, respondent committed at least 29 disciplinary infractions for fighting, assault, setting fires (five times), threatening bodily harm, destroying property, possessing narcotics, and theft. Tolstad (Classification Counselor), Overview (Jan. 13, 1982) (Book 4). /12/ The current SOC policy is contained in a memorandum, Department of Corrections, Institutional Policy and Procedures, No. SOC 620.200, Involuntary Medication Policy (Feb. 18, 1985) (hereinafter SOC Policy) (Book 9). The policy was adopted in part in response to Vitek v. Jones, 445 U.S. 480 (1980), which held that due process requires a hearing before a prisoner may be transferred to a mental hospital. Pet. App. B3. /13/ A "mental disorder" is defined under Washington law as "any organic, mental, or emotional impairment which has substantial adverse effects on an individual's cognitive or volitional functions." Wash. Rev. Code Ann. Section 71.05.020(2) (West Supp. 1989). /14/ "Gravely disabled" means "a condition in which a person, as a result of a mental disorder: (a) (i)s in danger of serious physical harm resulting from a failure to provide for his essential human needs of health or safety, or (b) manifests severe deterioration in routine functioning evidenced by repeated and escalating loss of cognitive or volitional control over his or her actions and is not receiving such care as is essential for his or her health or safety." Wash. Rev. Code Ann. Section 71.05.020(1) (West Supp. 1989). /15/ "Likelihood of serious harm means either: (a) (a) substantial risk that physical harm will be inflicted by an individual upon his own person, as evidenced by threats or attempts to commit suicide or inflict physical harm on one's self, (b) a substantial risk that physical harm will be inflicted by an individual upon another, as evidenced by behavior which has caused such harm or which places such another person or persons in reasonable fear of sustaining such harm, or (c) a substantial risk that physical harm will be inflicted by an individual upon the property of others, as evidenced by behavior which has caused a substantial loss or damage to the property of others." Wash. Rev. Code Ann. Section 71.05.020(3) (West Supp. 1989). /16/ "An emergency will be deemed to exist when, in the judgment of a licensed health professional with prescriptive authority, an inmate is suffering from mental disorder and, as a result of that disorder, presents an imminent likelihood of serious harm to himself or others." SOC Policy 2. When medication is prescribed in an emergency, a psychiatrist must be consulted within 24 hours. If he approves its use, medication may be continued for a full 72-hour period. Ibid. /17/ The review mechanism was later altered slightly. The initial treatment period was lengthened from seven to 14 days, but the special hearing committee still reviewed the prisoner's case at the end of that period. The biweekly reporting requirement was maintained, and if treatment continued for 180 days, a new hearing was held to consider whether further treatment was necessary. Pet. App. B4. /18/ The drugs included Trialafon, Haldol, Prolixin, Taractan, Loxitane, Mellaril, and Navane. Pet. App. A4 n.3, B7. The potential side effects of those drugs include dystonia, akathisia, and tardive dyskinesia. While being treated, respondent exhibited symptoms of dystonia and akathisia and was treated for them. Respondent did not exhibit signs of tardive dyskinesia. Id. at A5 n.4, B8. /19/ Respondent is apparently not receiving any medication involuntarily at present, but that fact does not moot his claim for declaratory and injunctive relief. Because respondent is seriously mentally disturbed and has not yet been released from prison, there is a reasonable likelihood that he could again be involuntarily medicated, particularly if the judgment below is reversed. Thus, the dispute between the parties can reasonably be expected to recur. Vitek, 445 U.S. at 486-487. /20/ In light of its decision on the due process issue, the Washington Supreme Court did not address respondent's equal protection and free speech claims. Pet. App. A4 n.2. On April 20, 1989, after the Court granted certiorari in this case, the State enacted a law, Substitute Senate Bill No. 5362, ch. 120, Laws 1989, that essentially adopted the procedures required by the decision below for all civilly committed mental patients. The act excludes correctional institutions and facilities from its scope. /21/ Since this Court's decision in Youngberg v. Romeo, 457 U.S. 307 (1982), which adopted a "professional judgment" standard to govern the involuntary use of restraints on a mentally retarded person, the federal courts have generally held that due process does not require a judicial hearing before antipsychotic medication can be ordered, and that the correct judicial inquiry is simply whether the responsible treating physician, in the exercise of professional judgment, has found that the use of such drugs is necessary to treat the patient. Charters, 863 F.2d at 307-313; Dautremont v. Broadlawns Hosp., 827 F.2d 291, 297-300 (8th Cir. 1987); Johnson v. Silvers, 742 F.2d 823 (4th Cir. 1984); Project Release v. Prevost, 722 F.2d 960, 980-981 (2d Cir. 1983); Rennie v. Klein, 720 F.2d 266 (3d Cir. 1983) (en banc); United States v. Bryant, 670 F. Supp. 840 (D. Minn. 1987); Stensvad v. Reivitz, 601 F. Supp. 128, 130-131 (W.D. Wis. 1985); R.A.J. v. Miller, 590 F. Supp. 1319, 1321-1323 (N.D. Tex. 1984); United States v. Leatherman, 580 F. Supp. 977, 979-980 (D.D.C. 1983), appeal dismissed, 729 F.2d 863 (D.C. Cir. 1984) (Table). But cf. Bee v. Greaves, 744 F.2d 1387, 1392-1396 & n.7 (10th Cir. 1984) (pretrial detainees have a due process right to refuse antipsychotic medication absent an emergency and a less restrictive restraint); Walters v. Western State Hosp., 864 F.2d 695 (10th Cir. 1988). By contrast, many state courts, principally as a matter of state law, have required a judicial hearing to determine the competence of a prisoner or patient to make treatment decisions before antipsychotic medication can be administered involuntarily in a nonemergency situation. See, e.g., Keyhea v. Rushen, 178 Cal. App. 3d 526, 223 Cal. Rptr. 746 (1986); In re Orr, 176 Ill. App. 3d 498, 531 N.E.2d 64 (1988); Opinion of the Justices, 123 N.H. 554, 465 A.2d 484 (1983); In re Mental Health of K.K.B., 609 P.2d 747 (Okla. 1980); State ex rel. Jones v. Gerhardstein, 141 Wis. 2d 710, 416 N.W.2d 883 (Wis. 1987). Of those States, some require the court to enter a substituted judgment on behalf of the incompetent patient. Riese v. St. Mary's Hosp. & Medical Ctr., 196 Cal. App. 3d 1388, 243 Cal. Rptr. 241 (1987); In re Bryant, 542 A.2d 1216 (D.C. 1988); Rogers v. Commissioner, 390 Mass. 489, 458 N.E.2d 308 (1983); In re Schuoler, 106 Wash. 2d 500, 507, 723 P.2d 1103, 1108 (1986). Others require the court to make a treatment determination based upon a variety of factors. Large v. Superior Court, 148 Ariz. 229, 244, 714 P.2d 399, 409 (1986) (treatment must be authorized by proper procedural regulations and prescribed for valid medical reasons); People v. Medina, 705 P.2d 961, 963-964 (Colo. 1985) (court must consider the necessity of the treatment, the availability of less obtrusive alternatives, the patient's need for the treatment, and the patient's interest in refusing treatment); In re Mental Commitment of M.P., 510 N.E.2d 645, 647 (Ind. 1987) (professional judgment standard insufficient to encompass all the factors that a court must consider); Jarvis v. Levine, 418 N.W.2d 139, 148 (Minn. 1988) (court shall appoint a guardian ad litem to represent the interests of the patient and shall determine the necessity and reasonableness of the prescribed treatment); Rivers v. Katz, 67 N.Y.2d 485, 497-498, 495 N.E.2d 337, 343-344, 504 N.Y.S.2d 74, 81 (1986) (treatment must be narrowly tailored to protect patient's liberty interest). /22/ At common law a competent adult has traditionally had the right to refuse medical treatment, and involuntary medical treatment of a competent individual has been treated as a battery absent his consent or an emergency. See, e.g., Mills, 457 U.S. at 294 n.4; Medina, 705 P.2d at 968; Schloendorff v. Society of New York Hosp., 211 N.Y. 125, 105 N.E. 92 (1914) (Cardozo, J.); F. Harper, F. James, Jr., & O. Gray, The Law of Torts Section 17.1 (2d ed. 1986); W. Keeton, Prosser and Keeton on The Law of Torts Section 18, at 116-119 (5th ed. Supp. 1984); see generally Davis v. Hubbard, 506 F. Supp. 915, 930-932 (N.D. Ohio 1980). The common law protection did not extend, however, to the mentally ill. See, e.g., Denny v. Tyler, 85 Mass. (3 Allen) 225 (1861); Note, 82 Colum. L. Rev. 1720, 1722 (1982). /23/ See, e.g., Bee, 744 F.2d at 1395-1396; Rennie, 720 F.2d at 269; Davis, 506 F. Supp. at 935; Large, 148 Ariz. at 239, 714 P.2d at 409; Riese, 243 Cal. Rptr. at 246; Medina, 705 P.2d at 974; In re Orr, 531 N.E.2d at 72; Gundy v. Pauley, 619 S.W.2d 730, 731 (Ky. Ct. App. 1981); Rogers, 390 Mass. at 489, 458 N.E.2d at 321; Opinion of the Justices, 123 N.H. at 736, 465 A.2d at 489; Katz, 67 N.Y.2d at 495, 495 N.E.2d at 343, 504 N.Y.S.2d at 80; In re Mental Health of K.K.B., 609 P.2d at 750; In re Schuoler, 106 Wash. 2d at 508, 723 P.2d at 1108; Gerhardstein, 141 Wis. 2d at 736, 416 N.W.2d at 894. /24/ Contrary to the ruling of the Washington Supreme Court, due process does not require that the rules of evidence be applied at a treatment hearing. Those rules need not be used at a hearing to determine whether a prisoner is mentally ill and should be transferred to a mental hospital, see Vitek, 445 U.S. at 494-495, and there is no greater reason to apply those rules when the issue to be decided concerns the appropriate clinical treatment.