Inmate on hunger strike loses appeals battle to refuse force
The Department of Corrections must show, based on medical opinion
testimony, that force feeding must continue or the inmate will
experience serious health risks.
By org jforward wisbar 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.
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
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
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
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.”
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.
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.