A finding of incompetence does not by itself authorize forced antipsychotic medication. For a felony case on the current Penal Code section 1370 restoration path, the court must separately consider the defendant’s capacity to make medication decisions and determine whether a statutory ground supports an order. Lack of decision-making capacity is expressly required for the serious-health-harm ground; the danger-to-others and serious-crime restoration grounds have different findings. Section 1370 was amended effective January 1, 2026. Misdemeanor cases use a different statute. (Penal Code § 1370; Penal Code § 1370.01)

Before ordering medication under section 1370(a)(2)(B), the court must evaluate the evidence for one of three separate grounds. The statute does not state a universal clear-and-convincing standard or require incapacity as an element of all three:

  • Serious health harm: the defendant cannot make medication decisions; the disorder requires antipsychotic treatment; and without it there is a probable risk of serious harm to health. The statutory showing concerns current adverse effects or prior effects together with substantial deterioration—not diagnosis alone.
  • Danger to others: the record must show qualifying inflicted, attempted or seriously threatened substantial physical harm in custody or conduct that resulted in custody, and demonstrate danger because of a mental disorder or defect. A general safety concern is not enough.
  • Restoration after a serious charge: only after the court finds the first two grounds unavailable, the court must find a serious charge against a person or property and, based on a psychiatrist’s opinion, that medication is substantially likely to restore competence, side effects are unlikely to impair understanding or assistance to counsel, less intrusive alternatives are unlikely to achieve substantially the same result, and medication is medically necessary and appropriate.

The statute also requires specified psychiatric or psychologist reports and a psychiatrist-directed treatment order. The court must make the findings for the actual ground relied on; incompetence, a diagnosis or a placement order does not automatically supply them. (Penal Code § 1370(a)(2)(B))

Consent-based treatment and emergency medication follow different routes. If consent is withdrawn or medication was not initially ordered and the treating psychiatrist finds it medically necessary and appropriate, the psychiatrist must first seek informed consent. If consent is not obtained, the statute’s later certification path requires a capacity assessment tied to the serious-health-harm or danger ground. In that path, medication may be given for up to 21 days following certification only with a medication-review hearing before an administrative law judge within 72 hours and representation by counsel or a patients’ rights advocate. If the administrative law judge rejects the certification, involuntary medication must stop until a court orders it. The psychiatrist files a petition concurrently with certification; the court hearing must occur no later than day 18, with a decision within three calendar days after the hearing and before the 21-day period expires. If the administrative law judge upholds certification, the court may extend it up to 14 days by stipulation or for good cause. Check the actual facility notice, certification date, ruling and current order. (Penal Code § 1370(a)(2)(C)–(D))

An involuntary medication order may last no more than one year without a new order. Progress reports generally begin within 90 days of commitment and continue at six-month intervals where required; the court reviews medication need as those reports arrive. A petition to renew a one-year order requires a hearing before the current order expires. The precise order and findings matter at each stage. The statute also provides routes to seek judicial review, including habeas corpus where appropriate. (Penal Code § 1370)

Bring counsel the competency and placement orders, medication findings, psychiatric reports, consent forms, facility notices and any review dates. That record helps identify whether the court used the correct felony pathway and made the findings required for the particular ground.

For more about competency hearings, see the firm’s practice page. For help reviewing a medication order, contact the Law Offices of David S. Chesley at (800) 755-5174.