Doyle, Presiding Judge.Larry Henderson was charged with four counts of aggravated assault against a peace officer.[1] Following a hearing, the trial court granted the State’s motion to involuntarily medicate him in an attempt to make him competent to stand trial. Henderson appeals, arguing that the trial court failed to follow the test set forth in Sell v. United States[2] and that he has a statutory right under OCGA § 37-3-163 to avoid involuntary medication. For the reasons set forth below, we vacate the trial court’s order and remand this case for further proceedings in light of this opinion. In Sell,[3]the Supreme Court of the United States established a fourpart test for determining the rare instances when it is constitutionally permissible to involuntarily medicate a mentally ill criminal defendant for the sole purpose of making him competent to stand trial. . . . [T]he first part of the [Sell] test generally presents a legal question and thus should be reviewed de novo on appeal, while the remaining three parts present primarily factual questions and thus should be reviewed only for clear error by the trial court.[4] So viewed, the record shows that on February 5, 2013, Henderson was charged with four counts of aggravated assault against a peace officer after he allegedly shot at four police officers, hitting one in the leg. On February 13, 2017, the State filed a motion for involuntary medication, alleging therein that: on May 10, 2013, defense counsel filed a motion for a mental evaluation; in June 2013, Dr. Deborah Gunnin found Henderson incompetent to stand trial; on July 2, 2013, Henderson filed a special plea of mental incompetency; on November 8, 2013, the trial court ordered a re-evaluation of competency; on February 4, 2014, psychiatrist Dr. Michael Vitacco completed a report, concluding that Henderson had a mental illness — schizoaffective disorder, bipolar type, which was in partial remission due to medication completion — but was competent to stand trial; on July 24, 2014, Henderson’s treating physicians wrote letters to the trial court indicating that he had refused to take medication and that his mental health symptoms had significantly worsened such that he was incompetent to stand trial; on August 28, 2014, the State filed a motion for involuntary medication; on August 29, 2014, following a hearing, the trial court entered an order for involuntary medication; on September 1, 2015, the trial court held a jury trial on Henderson’s plea of mental incompetency to stand trial, and the jury found him competent; on September 18, 2015, Henderson filed a special plea of not guilty by reason of insanity; on December 3, 2015, the trial court ordered a competency evaluation based on concerns raised by defense counsel; on September 22, 2016, following a second jury trial on his plea of mental incompetency, the trial court sustained Henderson’s plea and ordered him returned to the Department of Behavioral Health and Developmental Disabilities (“the Department”) for possible restoration to competency; and Dr. Brett Ryabik wrote to the trial court explaining that since Henderson’s November 22, 2016 admission to the Forensic Unit of East Central Regional Hospital, Henderson continuously refused to take his medication or to attend treatment groups, noting that Henderson would be unlikely to become competent to stand trial if he was not required to take his psychotropic medications.Henderson opposed the motion for involuntary medication, arguing that he had a clear statutory right to refuse medication under OCGA § 37-3-163 (a) and (b).At the May 15, 2017 Sell hearing, the State introduced the testimony of Dr. Ryabik and Dr. Holly Tabernik. Dr. Tabernik, a forensic psychologist who treated Henderson at East Central Regional Hospital, testified that he had been diagnosed with schizoaffective disorder and cannabis use disorder. Henderson had been involuntarily medicated since February 2017, based upon incidents of physical aggression against hospital staff, including grabbing their shirts and hitting them with doors. According to Dr. Tabernik, at the time of the hearing, the medication was “helping [Henderson's] mental status somewhat”; he was “less disorganized,” but continued to have delusional beliefs that “interfere[d] with his rational ability to consult with his attorney.” Dr. Tabernik opined that Henderson could not be restored to competency without taking psychotropic medications, and he has a “well-documented history of not being compliant with taking his medication.” Dr. Ryabik, Henderson’s treating forensic psychiatrist, testified that Henderson had been diagnosed with schizoaffective disorder, bipolar type, meaning that he suffered from depressive symptoms at times and manic symptoms with grandiose ideas at others. According to Dr. Ryabik, Henderson regularly refused his medications and “decompensated rather quickly” when he was returned to the detention center. Dr. Ryabik opined that there was no way that Henderson could be restored to competency without medications. At the time of the hearing, Henderson was being involuntarily administered three milligrams of Risperdal, an anti-psychotic medication, ten milligrams of Zyprexa, another anti-psychotic medication that is also used to treat mood symptoms, and Cogentin, intended to prophylactically mitigate the side effects of the anti-psychotics. According to Dr. Ryabik, Zyprexa and Risperdal can cause sleepiness or sedation, but Henderson had not experienced either as a result of taking them. Other side effects of “these types of medication” are tremors, stiff muscles, muscle spasms, and tardive dyskinesia — “slow, writhing, abnormal movements . . . usually around the face and mouth” — as well as weight gain and increased blood sugar, cholesterol, and lipids. Dr. Ryabik further testified that Henderson previously had been on Risperdal and Depakote, a mood stabilizer, which “overall” Ryabik thought “would be a more appropriate treatment for him.” Dr. Ryabik testified that since being on the Zyprexa and Risperdal, Henderson’s appetite had increased, he was “a lot easier to engage,” and his aggressive behavior had decreased. Nevertheless, Dr. Ryabik explained that “to get [Henderson] good enough to be competent to stand trial, we may have to give him different medications . . . and try some different things.” Dr. Ryabik did not, however, specify the “different medications,” though he did agree that “medication . . . [would be] substantially unlikely to have side effects that would interfere significantly with . . . Henderson’s ability to assist his lawyer in conducting a defense.” In closing argument at the hearing, defense counsel argued that an order for involuntary medication would violate Sell because the State had failed to identify a specific treatment plan, including the types and dosages of medications it proposed. At the conclusion of the hearing, the trial court orally granted the motion for involuntary medication.On May 17, 2017, the trial court entered a written order, concluding therein that “[t]he State has met its burden of showing the four Sell factors by the ‘clear and convincing evidence’ standard.” The Court further concluded that: [i]nvoluntary medication will significantly further the important State interest of timely prosecution and assuring that the [d]efendant’s trial is fair. The [c]ourt finds from the testimony of Dr. Ryabik that there is a substantial likelihood of restoring the [d]efendant to competency if the [d]efendant is medicated. The [c]ourt further finds that administration of anti-psychotic medication is substantially unlikely to have side effects that will interfere significantly with the [d]efendant’s ability to assist counsel in conducting a trial defense. In fact, the medicine will enhance his ability to help his lawyer defend the case.
