Inmate on hunger strike loses appeals battle to refuse force feeding

By Joe Forward, Legal Writer, State Bar of Wisconsin

Aug. 23, 2011 – A prison’s medical staff can continue to restrain and force feed an inmate whose hunger strike poses an imminent danger to his health, a Wisconsin appeals court recently concluded.

Under DOC v. Saenz, 2007 WI App 25, 299 Wis. 2d 486, 728 N.W.2d 765, the Wisconsin Department of Corrections (DOC) can obtain court authorization to forcibly feed and hydrate an inmate, despite an inmate’s constitutional right to refuse medical assistance.

In Wisconsin Dept. of Corrections v. Warren Lilly, Jr., 2009AP1420 (Aug. 18, 2011), the District IV Wisconsin Court of Appeals clarified what happens when the DOC seeks to continue force feeding, and ruled that “compelling circumstances” do not warrant an exception to Saenz.

Facts and procedure

At the start of a 10-year prison sentence in 2003, Warren Lilly, Jr. embarked on a hunger strike. He testified that he did not intend to commit suicide, but aimed to draw public attention to judicial and prison system injustices.

When Lilly stopped consuming all solids and liquids in 2004, the DOC obtained an order to force feed. The order allowed a licensed physician, with the assistance of medical and prison staff, to administer a nutritional supplement through a feeding tube while Lilly was restrained in a chair.

In light of the appeals court’s 2007 decision in Saenz, the DOC sought an “update” of the order in 2007. Saenz established the elements DOC must prove before obtaining authorization to force feed an inmate. The circuit court extended the order for six months, but limited force feeding to six days per week.

In August 2008, the court extended the order another year, but restricted the duration of each force feeding to no more than 15 minutes. But in February 2009, the DOC petitioned the court to authorize force feeding in the restraint chair for 45 minutes. The DOC argued that Lilly was voluntarily vomiting after each feeding, and administering smaller amounts of the supplement over a longer period of time would allow nutrients to pass through his stomach and restrict his ability to vomit.

While the February 2009 petition was pending, Lilly’s health declined. He agreed to take water, certain food items and the nutritional supplement without force feeding. His health improved, but Lilly stopped taking the nutritional supplement and stated that he planned to resume his hunger strike. A physician testified that if Lilly did not take the nutritional supplement, his health would be in imminent danger.

Lilly argued that he did not intend to commit suicide through his hunger strikes, and force feeding caused him considerable discomfort and pain. He noted that the World Medical Association condemns the practice of force feeding competent adults who wish to hunger strike.

Based on “compelling circumstances,” including Lilly’s high degree of intelligence, education, and mental competence, the circuit court terminated authorization to force feed Lilly. The DOC appealed.

Lilly’s rights under Saenz

Under Saenz, the court weighs an inmate’s constitutional right to refuse medical treatment against the DOC’s interest in preventing starvation, the appeals court explained.

The DOC must show an inmate is refusing nutrients sufficient to maintain health, the inmate is diagnosed as malnourished, and the inmate is in imminent danger of serious harm or death.

Here, the appeals court drew from Saenz to announce the elements DOC must prove when it seeks a continuation, rather than an initial authorization, to force feed.

“In these circumstances we conclude that DOC must show that: (1) if force feeding is withdrawn, it is likely the inmate would continue his or her hunger strike; and (2) if the inmate does continue, the inmate would, based on reliable medical opinion, be in imminent danger of suffering serious harm or death,” explained District IV Judge Margaret Vergeront.

The appeals court also ruled the “compelling circumstances” cannot preclude continued authorization to force feed where the DOC proves the elements regarding necessity.

“We conclude that creating such an exception is inconsistent with Saenz, and therefore is a modification of Saenz,” Judge Vergeront noted. “Any arguments for overruling, modifying or withdrawing language from a published opinion of this court must be addressed to the supreme court.”

Medical opinions

The appeals court also ruled that a circuit court must accept medical opinions that support the necessity for continued forced feeding, “unless there is evidence that they are a substantial departure from accepted medical judgment, practice or standards.”

Despite medical opinion testimony to the contrary, Lilly argued that forced feedings have not been effective because he has not gained weight, so withdrawing them would not result in declined health.

In terminating all force feeding orders, the circuit court noted that the World Medical Association (WMA) and certain medical ethicists condemn forced feeding of competent adults.

But the appeals court ruled that the WMA’s and medical ethicists’ policies and views are not, as a matter of law, sufficient to establish that the physician recommendations for forced feeding in this case substantially depart from accepted medical judgment, practice of standards.

Eighth amendment

The Eighth Amendment of the U.S. Constitution protects inmates from receiving cruel and unusual punishment, or force not applied in good faith. Lilly argued that using a restraint chair for an extended period violates his Eighth Amendment right to be free of unnecessary infliction of pain.

The appeals court disagreed, relying on medical opinion testimony to support the medical necessity of the procedure. But the appeals court remanded the case to address Lilly’s other complaints, including a complaint that security guards use excessive force to place and keep him in the restraint chair.