in Interest of R.F

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
July 18, 2019

2019COA110

No. 19CA0304, People in Interest of R.F. — Criminal Law —
Competency to Proceed — Involuntary Administration of
Medication

The People petitioned the district court for an order allowing

them to administer antipsychotic medication to respondent for the

purpose of rendering him competent to stand trial, and, after a

hearing, the court granted the petition.

A division of the court of appeals adopts the four-part test

articulated in Sell v. United States, 539 U.S. 166 (2003), for

evaluating the state’s request to involuntarily administer

antipsychotic medications to restore a defendant to competency.

Under the Sell test, the state must prove by clear and convincing

evidence that (1) important governmental interests are at stake; (2)

involuntary medication will significantly further those interests; (3)
involuntary medication is necessary to further the governmental

interests; and (4) the administration of the drugs is medically

appropriate. The second and third factors are necessarily

established by proof of subsidiary facts: that the medication is

substantially likely to restore the defendant to competency and is

substantially unlikely to have side effects that would interfere with

his ability to participate in his defense (second factor), and that no

other less intrusive alternative treatment is likely to achieve

substantially the same result and there is no less intrusive means

for administering the medication (third factor). The division

concludes that an appellate court reviews the first factor de novo

but the remaining factors for clear error.

In adopting the four-part Sell test, the division disagrees with

People in Interest of Hardesty, 2014 COA 138, which adopted a

variation of the Sell test consisting of eight factors and treated the

second and third factors as requiring proof separate and

independent of proof of the subsidiary facts.

Because the respondent, using the eight-part test, expressly

concedes the sufficiency of the evidence to support the district

court’s order, the division affirms.
COLORADO COURT OF APPEALS 2019COA110

Court of Appeals No. 19CA0304
Pueblo County District Court No. 19MH34
Honorable Jill S. Mattoon, Judge

The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of R.F.,

Respondent-Appellant.

ORDER AFFIRMED

Division V
Opinion by JUDGE HARRIS
Richman and Tow, JJ., concur

Announced July 18, 2019

Cynthia Mitchell, County Attorney, Kate H. Shafer, Special Assistant County
Attorney, Pueblo, Colorado, for Petitioner-Appellee

The Law Firm of John L. Rice, John L. Rice, Pueblo, Colorado, for Respondent-
Appellant
¶1 Sell v. United States, 539 U.S. 166 (2003), established a four-

part test for evaluating petitions to involuntarily administer

antipsychotic medication to render the respondent competent to

stand trial. In this case, we adopt the framework as set out by the

Supreme Court, thus disagreeing with another division of this

court, People in Interest of Hardesty, 2014 COA 138, which framed

the test as having eight parts.

¶2 Respondent, R.F., appeals the district court’s order allowing

doctors at the state mental health hospital to involuntarily

administer antipsychotic medication for the purpose of restoring

him to competency to stand trial. Because he expressly concedes

the sufficiency of the evidence to support the district court’s order,

we affirm.

I. Background

¶3 The People charged R.F. with second degree assault. The

district court ordered a competency evaluation, and, in July 2018,

R.F. was diagnosed by a psychiatrist at the state mental health

hospital with “psychosis — not otherwise specified” and found

incompetent to stand trial.

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¶4 In January 2019, after other restoration efforts proved

unsuccessful, the People petitioned the court under section 16-8.5-

112(1), C.R.S. 2018, for permission to involuntarily administer

antipsychotic medications and to monitor any side effects. The

district court held an evidentiary hearing on the petition.

¶5 R.F. and his treating psychiatrist, Dr. Lennart Abel, testified at

the hearing. Dr. Abel offered expert testimony that R.F. suffered

from persistent delusions and was unlikely to be rendered

competent without antipsychotic medications. He opined that the

medications the People sought to involuntarily administer were

substantially likely to render R.F. competent, but he did not provide

any basis for his conclusion, other than a brief reference to

“somebody who suffer[ed] from psychosis not otherwise specified”

whom he had once restored to competency.

¶6 Dr. Abel acknowledged that R.F. had not previously taken

antipsychotic medication and that he did not know “how [R.F. was]

going to react to these medications.” He conceded that R.F. might

be part of the “small group” of patients with delusional disorders

who do not respond to antipsychotic medication; in that event, Dr.

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Abel testified, he would “try other medications, other antipsychotic

medications that are not currently on this list.”

¶7 R.F. testified that he had refused the medication because he

disagreed with Dr. Abel’s diagnosis and treatment plan. He said he

would not consider taking the medications voluntarily until he

received a second opinion.

¶8 The district court found that the People had met their burden

to show that administration of the medication was necessary to

advance the state’s interest in restoring R.F. to competency.

Specifically, the court found that

• R.F. suffers from psychosis;

• R.F. is incapable of making treatment decisions because

of his mental health disorder;

• reasonable efforts have been made to obtain voluntary

acceptance of treatment, but R.F. objects to the proposed

treatment and refuses to take antipsychotic medication;

• a less intrusive treatment option is not available;

• an important governmental interest is at stake;

• the medication is substantially likely to render R.F.

competent to stand trial;

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• the medication is substantially unlikely to have side

effects that will affect R.F.’s ability to assist in his

defense;

• alternative or less intrusive treatment is unlikely to

achieve substantially similar results; and

• the medication is medically appropriate.

Based on these findings, the district court granted the People’s

petition.

II. Analysis

A. Legal Principles and Standard of Review

¶9 Forcing “medication into a nonconsenting person’s body

represents a substantial interference with that person’s liberty.”

Washington v. Harper, 494 U.S. 210, 229 (1990). In the case of

antipsychotic drugs, “that interference is particularly severe,”

Riggins v. Nevada, 504 U.S. 127, 134 (1992), because “such

medications threaten[] an individual’s ‘mental, as well as physical,

integrity,’” United States v. Watson, 793 F.3d 416, 419 (4th Cir.

2015) (quoting United States v. White, 620 F.3d 401, 422 (4th Cir.

2010) (Keenan, J., concurring)). Thus, the Due Process Clause of

the Fourteenth Amendment recognizes an interest in avoiding

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involuntary administration of antipsychotic drugs. Harper, 494

U.S. at 228.

¶ 10 Accordingly, the government may only involuntarily administer

antipsychotic medication to a defendant for the purpose of

rendering him competent to stand trial in cases “sufficiently

exceptional to warrant [such an] extraordinary measure.” White,

620 F.3d at 413.

¶ 11 To show that the case is sufficiently exceptional, the People

must satisfy the four-part test articulated by the Supreme Court in

Sell. 1

¶ 12 First, the state must prove that important governmental

interests are at stake. Sell, 539 U.S. at 180. The governmental

1 This test applies only when involuntary administration of drugs is
sought for the purpose of rendering the defendant competent to
stand trial. Sell v. United States, 539 U.S. 166, 181 (2003). When
the government seeks to involuntarily administer drugs to further
other purposes, such as those “related to the individual’s
dangerousness” or those related to an individual’s own interests
“where refusal to take drugs puts his health gravely at risk,” id. at
181-82, the test established in People v. Medina, 705 P.2d 961
(Colo. 1985), controls. “There are often strong reasons for a court
to determine whether forced administration of drugs can be
justified” under the Medina test “before turning to the trial
competence question.” Sell, 539 U.S. at 182.

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interest in bringing to trial an individual accused of a serious crime

is important. Id. Still, special circumstances may lessen the

importance of that interest. For example, if the defendant has

already been confined for a significant amount of time, for which he

would receive credit toward any sentence ultimately imposed, the

government’s interest may be somewhat diminished. Id.

¶ 13 Second, the state must prove that involuntary medication will

significantly further those interests. Id. at 181. The state proves

this factor by showing that the medication (a) is substantially likely

to render the defendant competent to stand trial and (b) is

substantially unlikely to have side effects that will interfere with the

defendant’s ability to assist in his defense. Id.

¶ 14 Third, the state must prove that involuntary medication is

necessary to further the governmental interests. Id. The state

proves this factor by showing that (a) any alternative, less intrusive

treatments are unlikely to achieve substantially the same results;

and (b) there are no less intrusive means for administering the

medication, such as an order to the defendant backed by the court’s

contempt power. Id.

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¶ 15 And fourth, the state must prove that administration of the

drugs is medically appropriate — that is, in the patient’s best

medical interests in light of his medical condition. Id.

¶ 16 Because involuntary administration of antipsychotic

medication is “a tool that must not be casually deployed,” United

States v. Chatmon, 718 F.3d 369, 374 (4th Cir. 2013), the

government is held to a heightened burden and must prove each

factor by clear and convincing evidence, United States v. Gomes,

387 F.3d 157, 160 (2d Cir. 2004). “Clear and convincing evidence

means evidence which is stronger than a mere ‘preponderance’; it is

evidence that is highly probable and free from serious or

substantial doubt.” Metro Moving & Storage Co. v. Gussert, 914

P.2d 411, 414 (Colo. App. 1995).

¶ 17 We acknowledge that a different division of this court has

framed the Sell inquiry as an eight-part test. Hardesty, ¶¶ 7-14. In

that version of the test, factors two and three are stand-alone

factors, rather than conclusions derived from subsidiary findings.

In other words, the Hardesty division determined that the state

must prove that the involuntary medication will significantly further

the important governmental interest and that the medication is

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substantially likely to render the defendant competent to stand trial

and that the medication is substantially unlikely to have side effects

that would interfere with the defendant’s ability to participate in his

defense. Id. at ¶¶ 8-10. Likewise, the division concluded that the

state must prove that the involuntary medication is necessary to

further the governmental interest and that an alternative treatment

is unlikely to achieve substantially the same results and that there

are no less intrusive means for administering the medication. Id. at

¶¶ 11-13.

¶ 18 The following chart illustrates the two different approaches:

Sell Hardesty
1. Important governmental 1. The defendant is facing
interests are at stake. serious criminal charges.
2. Involuntary medication 2. Involuntary medication
will significantly further will significantly further
those interests, meaning the state’s interest in
the following: prosecution.
a. Administration of the 3. Administration of the
drugs is substantially drugs is substantially
likely to render the likely to render the
defendant competent to defendant competent to
stand trial; and stand trial.
b. Administration of the 4. Administration of the
drugs is substantially drugs is substantially
unlikely to have side unlikely to have side
effects that will interfere effects that will interfere
significantly with the significantly with the
defendant’s ability to defendant’s ability to
assist in his defense. assist in his defense.

8
3. Involuntary medication is 5. Administration of the
necessary to further those drugs is necessary to
interests, meaning the further the governmental
following: interests.
a. Any alternative, less 6. The district court
intrusive treatments are considered less intrusive
unlikely to achieve means for administering
substantially the same the drugs to the
results; and defendant.
b. The district court 7. Any alternative, less
considered less intrusive intrusive treatments are
means for administering unlikely to achieve
the drugs to the substantially the same
defendant. results.
4. Administration of the 8. Administration of the
drugs is medically drugs is medically
appropriate. appropriate.
¶ 19 But in our view, the second and third factors describe the

conclusion drawn from the subsidiary findings. Sell instructs, for

example, that to grant the government’s petition, the district court

must “conclude” that involuntary medication will significantly

further the governmental interests based on “find[ings]” that the

medication will render the defendant competent and that it will not

have deleterious side effects. Sell, 539 U.S. at 181. Thus, under

our reading of Sell, the second and third factors are necessarily

established upon proof by clear and convincing evidence of the

subsidiary facts that underlie those factors.

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¶ 20 To the extent the Hardesty division intended to impose some

additional burden on the government under the second and third

factors, we are unable to discern the nature of that burden or its

derivation from Sell. Accordingly, we elect to adhere to the test as

articulated by the Supreme Court. See In re Estate of Becker, 32

P.3d 557, 563 (Colo. App. 2000), aff’d sub nom. In re Estate of

DeWitt, 54 P.3d 849 (Colo. 2002) (a division of the court of appeals

is not obligated to follow the precedent established by another

division).

¶ 21 Because we construe the test as comprising four factors, three

of which are based on specific factual findings, we also disagree

with the Hardesty division’s articulation of the standard of review.

In our view, only the first factor — whether the government’s

asserted interest is sufficiently important — presents a legal

question subject to de novo review. See Gomes, 387 F.3d at 160.

The district court’s findings with respect to the other Sell factors are

factual in nature and are therefore subject to review for clear error.

Id.; cf. Hardesty, ¶¶ 15-17 (reviewing importance of governmental

interest and whether medication will significantly advance the

10
interest under a de novo standard of review but applying clear error

review to the remaining six factors).

B. Application

¶ 22 This appeal illustrates the confusion that can arise from

application of an eight-part test.

¶ 23 R.F. expressly concedes that the state proved by clear and

convincing evidence that the governmental interest in bringing him

to trial is sufficiently strong (Sell factor one) and that administration

of the drugs is medically appropriate (Sell factor four).

¶ 24 He also concedes that the state proved that the medication is

substantially likely to render him competent to stand trial and that

the medication is substantially unlikely to have side effects that will

interfere with his ability to participate in his defense. Under our

application of the Sell test, he has therefore conceded factor two:

that the involuntary administration of drugs will significantly

further the important governmental interest at stake.

¶ 25 But following Hardesty, R.F. argues that the People failed to

prove this second factor, which the Hardesty division interpreted as

requiring some inquiry independent of whether the drugs are likely

to restore the defendant to competency and whether the drugs are

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unlikely to produce deleterious side effects. R.F. does not explain,

though, what additional inquiry is required, or what additional

evidence the People had to present, to prove Hardesty’s version of

the second factor.

¶ 26 To be sure, a mere conclusory statement from the defendant’s

treating psychiatrist that the proposed medication is substantially

likely to restore the defendant to competency is not sufficient.

Because allowing “the government to meet its burden through

generalized evidence alone would effectively allow it to prevail in

every case involving the same condition or course of treatment” and

involuntary medication is to be the exception rather than the rule,

we require individualized evidence. Watson, 793 F.3d at 425. So

instead of proof that the medications are generally effective, the

People must demonstrate that the “proposed treatment plan, as

applied to this particular defendant, is ‘substantially likely’ to render

the defendant competent to stand trial.” United States v. Evans,

404 F.3d 227, 241-42 (4th Cir. 2005); see also United States v.

Diaz, 630 F.3d 1314 (11th Cir. 2011) (affirming the district court’s

order granting the government’s petition where experts testified

about relevant studies and applied data to the defendant’s

12
condition); United States v. Ruiz-Gaxiola, 623 F.3d 684, 700 (9th

Cir. 2010) (the government did not prove the second Sell factor

where “the government experts rely on generalities and fail to apply

their views to [the defendant’s] condition with specificity”); People v.

Coleman, 145 Cal. Rptr. 3d 329, 335 (Cal. Ct. App. 2012) (the

government proved the second Sell factor with evidence that the

“[m]edication successfully restored defendant’s competence

previously”); State v. Barzee, 177 P.3d 48, 77-78 (Utah 2007)

(affirming the district court’s involuntary medication order where

doctors testified regarding their clinical experience treating other

patients with the same condition and similar symptoms as the

defendant).

¶ 27 However, we have no occasion to evaluate the sufficiency of

the evidence regarding the likelihood that the medications will

restore R.F. to competency, as he did not challenge the district

court’s finding that it would.

¶ 28 As for the argument regarding sufficiency of the evidence to

support the third Sell factor, R.F. makes the same analytical error.

He expressly concedes that the People proved by clear and

convincing evidence that any alternative, less intrusive treatment is

13
unlikely to achieve substantially the same result as the

antipsychotic medication and that there are no less intrusive means

for administering the medication. Yet, he argues that the evidence

was insufficient to establish that involuntary medication is

necessary to further an important governmental interest. Again, he

does not explain what additional showing is required to establish

the third Sell factor.

¶ 29 Because we conclude that the People have met their burden to

prove the second and third Sell factors by virtue of R.F.’s concession

that the medication is substantially likely to restore him to

competency, the medication is substantially unlikely to have side

effects that will affect his ability to assist in his defense, no

alternative treatment is likely to achieve the same results, and the

court considered less intrusive means for administering the

medication, we affirm the district court’s order.

III. Conclusion

¶ 30 The order is affirmed.

JUDGE RICHMAN and JUDGE TOW concur.

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