The En Banc Oregon Supreme Court held that trial courts have implied authority to issue Sell orders directing the Oregon State Hospital (OSH) to administer involuntary medication to restore a criminal defendant's capacity to stand trial, even when OSH does not agree that medication is medically necessary.

In 2003, the United States Supreme Court held in Sell v. United States, 539 U.S. 166, 123 S.Ct. 3274 (2003), that trial courts may issue orders directing the involuntary administration of antipsychotic drugs to render a criminal defendant competent to stand trial. Those orders have ·come to be known as "Sell orders."

Oregon adopted ORS 161.360 to 161.370, governing a defendant's incompetence to stand trial in 1971. Unlike many states, Oregon did not enact post-Sell legislation to "explicitly grant trial courts authority to enter Sell orders or that implement the Court's decision in Sell."

As PLN previously reported, the Oregon Supreme Court held  in State v. Lopes,  355 Or 72, 322 P3d 512 (2014), that trial courts have implicit authority under ORS 161.370 to issue Sell orders requiring hospitals to involuntarily medicate defendants for the purpose of restoring their fitness to stand trial.  See: Ninth Circuit Vacates Involuntary Medication Order for Sell Violations.

In January 2011, Daniel Armaugh Butts was charged with fatally shooting Rainer, Oregon Police Chief Ralph Painter. Soon afterwards, his attorneys became concerned about his ability to aid and assist in his   defense.

They had Butts evaluated by psychiatrist Dr. Larsen, who concluded that he suffers from psychosis and possibly schizophrenia. The doctor recommended that Butts be treated with antipsychotic medication.

The trial court then ordered Butts committed to OSH for an aid and assist evaluation. In July 2011, an OSH psychologist evaluated Butts and concluded that he did not suffer from a mental disease or defect and that he was able to aid and assist in his defense.

During a December 2011 aid and assist hearing, the court noted the competing medical opinions about Butts' mental state. Although Butts' behavior was "disturbing," the court found that it could "support a finding that defendant is gaming the system. "Nevertheless, the court saw no reason to deny him the antipsychotic medication that Larsen prescribed and ordered that the medication be administered.

In early 2012, the court ordered Butts returned to OSH for a second aid and assist evaluation. OSH psychiatrist Dr. Sethi evaluated Butts and concluded that he did not suffer from a mental disease or defect.

At a second aid and assist hearing in February 2013, the court noted that it remained unclear if Butts' failure to cooperate with counsel or participate in his defense was a "rational and calculated strategy or the product of a mental disorder." Ultimately, the court concluded that "defendant is currently unable to aid and assist," possibly due to schizophrenia and other mental deficiencies.

Butts was again committed to OSH in March 2013, for treatment including involuntary administration of antipsychotic medication, for the purpose of restoring his capacity to stand trial. OSH psychologist Dr. Stover concluded that Butts was malingering and did not have a mental disorder or defect that would interfere with his ability to aid and assist. OSH physician Dr. Knott found, however, that Butts was showing symptoms of a psychotic disorder and recommended that he be involuntarily medicated. Independent physician Dr. McCarthy, diagnosed Butts with a psychotic disorder and made the same recommendation.  Based on those recommendations, the OSH chief medical officer approved the involuntary administration of antipsychotic medication. After the involuntary medication was approved, Knott changed Butts' diagnosis from a psychotic disorder to depression and a possible personality disorder.

A May 1, 2013 order was issued, authorizing the immediate administration of antipsychotic medication without informed consent.

When OSH did not medicate Butts, his attorneys sought another court order for involuntary medication. Relying upon the previous medical opinions and a September 2014 affidavit of defense expert Dr. Adler who recommended antipsychotic medication to restore Butts' capacity to stand trial, the court entered a September 2014 Sell order. The court directed OSH to involuntarily administer antipsychotic medication to Butts. The prosecutor and OSH moved to vacate the Sell order but the trial court denied those motions. OSH again refused to comply with the order.

The court issued a subsequent Sell order on January 16, 2015, reaffirming its prior orders and again ordering OSH to involuntarily administer the recommended antipsychotic medications.

OSH then filed a petition for a writ of mandamus in the Oregon Supreme Court, arguing that the trial court does not have authority to order OSH to involuntarily medicate a criminal defendant when OSH does not agree that such treatment is medically necessary.

The Oregon Supreme Court dismissed the petition. "Where, as here, a trial court has found that a defendant is not fit to proceed based on medical evidence," the Court concluded "that the general authority conferred by ORS 161.370(1), by implication, also confers on trial courts the authority to issue Sell orders whether or not an OSH doctor has agreed that the medication ordered is medically necessary." The Court expressly limited its holding "to the issuance of Sell orders only."

The Court rejected OSH's argument "that the legislature intended, effectively, to grant OSH veto power in any case in which the hospital disagrees with the court's fitness and treatment determination," since doing so would bring the criminal proceedings to a standstill, as it had in Butts' case since February 2013. Such a "stalemate" would be inconsistent with legislative intent and the statute's purpose, the Court found. See: Oregon State Hospital v. Butts, 358 Or. 49, -P3d -(2015)(En Banc).

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