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(2006) Alaska Supreme Court rules forced drugging is unconstitutional

Health
Alaska Supreme Court rules forced drugging is unconstitutional
By Evelyn Pringle
Online Journal Contributing Writer


Oct 4, 2006, 02:17

 

For all people who oppose forced psychiatric drugging a major legal victory recently occurred in the highest court in the state of Alaska. In a resounding affirmation of personal liberty, the Alaska Supreme Court issued a decision in the case of Myers v Alaska Psychiatric Institute and found Alaska’s forced drugging regime to be unconstitutional.

One of the drugs that the institute tried to force on the plaintiff was Zyprexa and, from here on in, the state cannot force people to take Zyprexa, or any other psychiatric drug, without first proving it to be in the patient’s best interests and that there are no less restrictive alternatives available. The ruling is specific to psychiatric drugs.

“By requiring the least intrusive alternative to forced psychiatric drugging,” says Jim Gottstein, the triumphant attorney in the case, “this decision has the potential to change the face of current psychiatric practice, dramatically improving the lives of people who now find themselves at the wrong end of a hypodermic needle.“

Mr. Gottstein acknowledges that the ruling will effect drug company profits. “The issue of Big Pharma profits is a big one, of course,” he says, “and the Myers decision is perhaps most relevant where it states, ‘a valid debate exists in the medical/psychiatric community as to the safety and effectiveness of the [drugs].’”

“This is judicial confirmation,” he explains, “that the safety and efficacy of these psychiatric drugs has not really been established and can be used to support that contention.”

“Most importantly in my mind,” Mr. Gottstein continued, “is that if the Myers stricture that people can’t be forced to take these unwanted drugs if there are less restrictive alternatives results in these non-drug approaches being used, that will directly cut down on their use. “

“The key ruling that I think can be used to benefit other people who are faced with forced drugging,” he advises, “is that under the Myers decision the state can’t force drug people if there is a less restrictive alternative.”

“This can be used to require that such alternatives be supported,” he added.

“While the Supreme Court ruling is only binding in Alaska,” says patient advocate, Vince Boem, “the ruling can be cited as persuasive authority in other states, and the legal theories involved can serve as a road map for attorneys arguing similar cases.”

Faith Myers, the plaintiff in the case, said of the decision, “It makes all of my suffering worthwhile.”

While acknowledging that some people find psychiatric drugs helpful, Mr. Gottstein said he pursued this case because, in addition to the drugs’ serious physical health risks, he is concerned about the rights of those who find the drugs both unhelpful and intolerable.

“No other field of medicine allows this sort of forced treatment,” he points out.

“For people who want to try non-drug approaches,” he explains, “the research is very clear that many will have much better long-term outcomes, including complete recovery after being diagnosed with serious mental illness.”

“This decision restores the rights of those people to pursue that potential,” he states.

“Of course,” he says, “there are many people who see psychiatrists and voluntarily, even eagerly, take psychiatric medications.”

And he “has absolutely no complaint about this.”

It is the unwarranted forced treatment that he objects to, “using the force of law (court orders) to compel people to submit to unwarranted psychiatric treatments they do not want,” he says.

Mr. Gottstein is speaking at the International Center for the Study of Psychiatry and Psychology’s annual conference being held October 7-9 in Washington, DC, on “ Mental Health and the Law.”

After being involuntarily committed to the Alaska Psychiatric Institute, Ms.. Meyers appealed a superior court order approving the administration of psychotropic drugs by the hospital. She argued that the statutes relied on in approving the medication violated the Alaska Constitution’s guarantees of privacy and liberty.

The Alaska Supreme Court agreed. “In keeping with most state courts that have addressed the issue,” it said, “we hold that, in the absence of emergency, a court may not authorize the state to administer psychotropic drugs to a non-consenting mental patient unless the court determines that the medication is in the best interests of the patient and that no less intrusive alternative treatment is available.”

The state high court noted the trial court’s concern that the statute does not allow the court to consider the problems with the drugs, even though “a valid debate exists in the medical/psychiatric community as to the safety and effectiveness of the proposed treatment plan.”

With the Supreme Court’s decision, trial courts are not only allowed to consider, they are required to consider the safety and effectiveness of the medications in deciding whether the proposed drugging is in the patient’s best interest.

The court specifically points out that Alaska statutes require a hospital to honor a patient’s previously expressed desires regarding psychiatric medications.

Ms.. Myers has suffered with mental illness for over 20 years and her symptoms have at times included paranoia, dizziness, and hallucinations. She has been hospitalized a number of times and placed on psychotropic drugs in the past.

In 2001, she weaned herself off psychotropic drugs, believing that they actually worsened her condition and since then, has described herself as an advocate for the mentally ill.

In February 2003, as a result of concerns of her daughter and neighbors, Ms. Myers was involuntarily committed to the API. Once admitted, she refused to discuss treatment options with institute doctors and the API filed a petition with the court requesting authorization to medicate Ms. Myers without her consent.

She responded by challenging the constitutionality of the statutory scheme that authorizes facilities to administer psychotropic drugs without the patient’s consent and argued that Alaska’s constitutional rights to liberty and privacy guarantee her the “right to be free from unwanted mind-altering chemicals.”

She asserted that the state can only abridge this right when necessary to advance a compelling state interest and that, in her case, the API had “not come close” to making this showing and had also failed to show that involuntary drugging was the least restrictive means of advancing any state interest.

She also challenged the statutory limitation on a court’s authority to modify or restrict a treatment plan. The statute authorizing court-ordered administration of psychotropic drugs provides that once a court determines that a patient is not competent to provide informed consent, the court “shall approve the . . . proposed use of psychotropic[s].”

On its face, the Supreme Court noted, this provision does not seem to allow the court to consider whether the treatment plan would actually be in the patient’s best interest, leaving that decision completely to the treating facility’s physicians.

During Ms. Myers’s hearing in the lower court, two API psychiatrists testified that administering drugs to Ms. Myers would be appropriate.

Ms. Myers responded with testimony from her own two expert psychiatrists. The first testified that medication is not the only available treatment for schizophrenia. While acknowledging that drugs played an accepted role in the “standard of care for treatment of psychosis,” he testified that, because such drugs “have so many problems,” they should be used “in as small a dose for as short a period of time as possible.”

Ms. Myers’s second expert specifically testified that Zyprexa, despite being “widely prescribed,” was a “very dangerous” drug of “dubious efficacy.” He based his testimony on a “methodological analysis” of the studies that led to the approval of Zyprexa by the FDA.

At the end of the hearing, the lower court found that Ms. Myers “lacked . . . insight into her own condition” and did “not appreciate that she suffers from a mental disorder.”

Although the court noted that Ms. Myers understood the debate about the advisability of medication and had articulated a “reasonable objection to the proposed medication,” the court nonetheless ruled that she lacked the capacity to make informed decisions regarding her treatment.

Construing the statutes as not allowing it to make a determination of Ms. Myers’s best interests, the court did not consider her expert evidence on the point and authorized the API to administer the drugs based on its own assessment of Ms. Myers’s best interests.

The court did note that it found Ms. Myers’s case “troubling,” so much so that it issued an additional order addressing in detail the arguments presented by the parties in pre-hearing briefs. In the order, the court found it troubling that Alaska’s statutory scheme prevented it from considering the merits of API’s treatment plan, or weighing the objections of Ms. Myers’s experts.

Because it believed that the statute limited the court’s role “to deciding whether Ms.. Myers has sufficient capacity to give informed consent,” the court felt constrained to adhere to its meaning but emphasized that it found the limitation problematic stating, “Where a patient, such as Ms.. Myers, has a history of undergoing a medical treatment she found to be harmful, where she is found to lack capacity to make her own medical decisions and a valid debate exists in the medical/psychiatric community as to the safety and effectiveness of the proposed treatment plan, it is troubling that the statutory scheme apparently does not provide a mechanism for presenting scientific evidence challenging the proposed treatment plan.”

On appeal, Ms. Meyers argued that the provisions governing authorization of treatment with psychotropic medications violate the Alaska Constitution’s guarantees of liberty and privacy and the state Supreme Court agreed.

“In our view,” the court wrote, “before a state may administer psychotropic drugs to a non-consenting mentally ill patient in a non-emergency setting, an independent judicial best interests determination is constitutionally necessary to ensure that the proposed treatment is actually the least intrusive means of protecting the patient.”

In reaching its decision, the Court noted that Alaska law recognizes and addresses a distinct class of drugs called “psychotropic medications.”

“Because psychotropic medication can have profound and lasting negative effects on a patient’s mind and body,” the court said, “Alaska’s statutory provisions permitting nonconsensual treatment with psychotropic medications implicate fundamental liberty and privacy interests.”

The right to choose or reject medical treatment, the court noted, finds its source in the fundamental guarantees of liberty and privacy. “The constitution itself requires courts, not physicians,” the court noted, “to protect and enforce these guarantees.”

Psychotropic drugs, the court said, “affect the mind, behavior, intellectual functions, perception, moods, and emotions” and are known to cause a number of potentially devastating side effects.

“Side effects aside,” it stated, “the truly intrusive nature of psychotropic drugs may be best understood by appreciating that they are literally intended to alter the mind.”

Under Alaska law, when the state files its petition to authorize psychotropic medication, a “visitor” must be appointed to assist the court when it considers the petition.

The visitor has a duty to provide information on two issues: first, the visitor must evaluate the patient’s present condition by administering a “capacity assessment”; second, the visitor must conduct a search for any prior “expressed wishes of the patient regarding medication.”

The search for prior expressions regarding medications,” the court said, “includes both written and oral statements.”

The information must include documentation of any expressed wishes of the patient regarding medication, including wishes expressed in a power of attorney, a living will, an advance health care directive or oral statements in conversations with relatives and friends that are significant persons in the patient’s life as those conversations are remembered by the relatives and friends.

The court’s decision states that “if the information gathered and documented by the visitor enables the court to find that the patient has expressed a prior competent desire not to be medicated, then the court may not authorize treatment.”

“We conclude,” the Supreme Court wrote, “that the Alaska Constitution’s guarantees of liberty and privacy require an independent judicial determination of an incompetent mental patient’s best interests before the superior court may authorize a facility like API to treat the patient with psychotropic drugs.”

The court also said that “in future non-emergency cases a court may not permit a treatment facility to administer psychotropic drugs unless the court makes findings that comply with all applicable statutory requirements and, in addition, expressly finds by clear and convincing evidence that the proposed treatment is in the patient’s best interests and that no less intrusive alternative is available.”

A number of other states have also ruled that the right to refuse psychotropic drugs is fundamental. For instance, in Rogers v. Commissioner of the Department of Mental Health, the Supreme Court of Massachusetts held that a committed mental patient could not be forcibly drugged with anti-psychotics unless a court determined both that he was incompetent and would have consented to the drugs if he were competent.

The court emphasized that mentally ill patients have dignity and worth equal to other individuals and said that a committed patient is entitled to an independent judicial determination of whether the patient would have consented to receive psychotropic drugs.

In Rivers v Katz, the New York Court of Appeals found a person’s right to control his medical treatment in state common law but went on to declare that “[t]his fundamental common-law right is coextensive with the patient’s liberty interest protected by the due process clause of our State Constitution.”

In our system of a free government, the court wrote, where notions of individual autonomy and free choice are cherished, it is the individual who must have the final say in decisions regarding medical treatment. If the court concludes that the patient lacks the capacity to determine his own treatment, it stated, “The court must determine whether the proposed treatment is narrowly tailored to give substantive effect to the patient’s liberty interest, taking into consideration all relevant circumstances, including the patient’s best interests, the benefits to be gained from the treatment, the adverse side effects associated with the treatment and any less intrusive alternative treatments.”

The Minnesota Supreme Court reached a similar decision in Jarvis v Levine and ruled that the constitutional guarantee of privacy “begins with protecting the integrity of one’s own body and includes the right not to have it altered or invaded without consent. Commitment to an institution does not eliminate this right. When intrusive treatment is proposed, the ‘professional judgment’ of medical personnel insufficiently protects this basic human right.”

Most recently, the Ohio Supreme Court ruled in Steele v. Hamilton County Community Mental Health Board that the state could forcibly medicate a mental patient only after a court had found, “by clear and convincing evidence, that (1) the patient does not have the capacity to give or withhold informed consent regarding his/her treatment, (2) it is in the patient’s best interest to take the medication, i.e., the benefits of the medication outweigh the side effects, and (3) no less intrusive treatment will be as effective in treating the mental illness.”

Given the nature and potentially devastating impact of psychotropic medications, the court said that “the right to refuse to take psychotropic drugs is fundamental.”

This right, the court said, must extend “equally to mentally ill persons,” so that the mentally ill are not treated “as persons of lesser status or dignity because of their illness.”

More information for injured parties can be found at Lawyers and Settlements.com.

Evelyn Pringle is a columnist for OpEd News and an investigative journalist focused on exposing corruption in government and corporate America.

Filed under: Alaska, forced 'treatment', Jim Gottstein

PsychRights Article Excerpt on Legal Force and Psychiatry

Please make a donation to PsychRights by visiting their website. There you can also get an idea of all the wonderful and crucially needed work this organization is doing, including launching a Soteria house, a pro bono legal representation campaign for involuntary patients, exposing drug risks, and suing to force an end to drugging of foster children.
 

Psychiatry: Force of Law
by James B. Gottstein, Esq.
November, 2002

The purpose of this article is to set forth just the basic legal principles, underpinnings and practices employed in the widespread use of legal force to compel unwilling patients into locked psychiatric hospitals and, most importantly, force brain damaging drugs and other brain damaging treatments such as Electroshock upon them over their desperate, but hopeless objections.  The companion article, Unwarranted Court Ordered Medication: A Call to Action, describes what might be done about it and this article is really background for that one.  In addition, there are a number of excellent law review articles on the subject, a small sampling of which are listed at the end of this article.

The impetus for this article is the realization that the scientific basis for these forced treatments is non-existent and they are permanently damaging hundreds of thousands, if not millions, of people.  No other field of medicine allows this sort of forced treatment.  Of course, there are many people who see psychiatrists and voluntarily, even eagerly, take psychiatric medications.  This article has absolutely no complaint about this.  It is unwarranted forced treatment that is being addressed.  This article also does not address the issue of somewhat more subtle coercion such as “if you don’t take the medication, we will take your housing away from you” or “if you don’t take your medication, we will have you committed to the mental hospital.”  This article is solely concerned with using the force of law (court orders) to compel people to submit to unwarranted psychiatric treatments they do not want.  What  unfolds is a legal system of Catch-22′s for the patients and one where the courts have not only abdicated to “professionals” their responsibility to protect the rights of people coming before them, but also condones perjury in furtherance of this abdication.

Go to psychrights.org and click on Psychiatry: Force of Law to read the rest of the article.

Filed under: forced 'treatment', Jim Gottstein, Psychiatry: Force of Law, PsychRights

Alaska Soteria House Seeks Staff for Fall Opening

Soteria House in Alaska Seeks Staff.  Soteria House to Open This Fall.

 

Soteria-Alaska is a home where people who are experiencing symptoms that are associated with diagnoses of mental illness can live while they begin their recovery process.  The primary services are peer support, homelike environment/milieu, inclusion in the community.  Families are encouraged to participate at the desire of the resident.  The home will welcome the sharing of diverse cultural traditions as determined by the residents in the home.  Soteria-Alaska is a place for people who might otherwise go to the hospital if an alternative was not available or who have been in the hospital for a brief period of time, but would benefit from the Soteria environment.  It is not a permanent residence.  It is a 24 hour staffed home that is located in Anchorage , but accepts residents from all of Alaska .  Soteria values choice, self determination, the power of peer support and respect for all people.

 

Soteria-Alaska is recruiting for a House Manager and eight to ten Residential Assistants. 

 

The House Manager will oversee day to day operations, supervise staff under the direction of the Executive Director and with the Executive Director set the tone of the environment.  People who understand and exemplify the Soteria philosophy are encouraged to apply.  Individuals with personal experience with recovery and people with licensure or eligible for licensure in Alaska will be strongly considered for theHouse Manager position.

 

Residential Assistants will work under the supervision of the House Manager and the Executive Director.  They will provide support to individuals who are experiencing acute symptoms such as hearing voices, fear, anxiety, and inability to sleep.  They will participate with residents in the operation of the house such as shopping, cooking and cleaning.  Residential Assistants will be compassionate and respectful and will honor personal choice of individuals while acknowledging the needs of the community.  Individuals with personal experience with recovery will be strongly considered for Residential Assistant positions.

 

Volunteers and Student Interns are welcome to join the Soteria House team.  Volunteers and Students will work under the supervision of the House Manager and the Executive Director and will work along side Residential Assistants in providing support to residents.  Soteria-Alaska has signed a memorandum of Agreement with the Alaska Division of Vocational Rehabilitation (DVR) and welcomes participation from individuals seeking training and experience who are clients of DVR.

 

Soteria has some limited, affordable, temporary housing available to people who are relocating to Anchorage to work in Soteria House.

 

Contact:  Susan Musante, Executive Director Soteria-Alaska, Inc. and CHOICES, Inc.

susan@soteria-alaska.com (907)333-4343

– 

James B. (Jim) Gottstein, Esq.
President/CEO

Law Project for Psychiatric Rights
406 G Street, Suite 206
Anchorage, Alaska  99501
USA

Phone: (907) 274-7686)  Fax: (907) 274-9493
jim.gottstein[[at]]psychrights.org 
http://psychrights.org/

 PsychRights® 
            Law Project for
       Psychiatric Rights

The Law Project for Psychiatric Rights is a public interest law firm devoted to the defense of people facing the horrors of forced psychiatric drugging.  We are further dedicated to exposing the truth about these drugs and the courts being misled into ordering people to be drugged and subjected to other brain and body damaging interventions against their will.  Extensive information about this is available on our web site, http://psychrights.org/. Please donate generously.  Our work is fueled with your IRS 501(c)tax deductible donations.  Thank you for your ongoing help and support.

Filed under: Jim Gottstein, PsychRights,

An Open Letter To Congress On The MOTHERS Act

http://www.uniteforlife.org/openlettermothersact.pdf

Filed under: Amy Philo, antidepressants, Congress, forced 'treatment', Isaac Philo, Jim Gottstein, Julie Edgington, lawsuits, Manie, Melanie Stokes, mothers act, Pregnancy, PsychRights, suicide, Zoloft

PsychRights Argues For Pro Bono Movement

A call for attorneys in New York – a memo on “Kendra’s Law”

This is a fascinating read detailing all the reasons why we need attorneys in each judicial district to step up to the plate and defend patients against forced drugging. As Gottstein states, his memo does not fully address the crisis of forced ECT, or the mass drugging of America’s children, which is clearly an emergency. 

But obviously the time could not be more appropriate to defend adults against forced drugging. We are faced, after all, with the possibility of forced drugging via The MOTHERS Act. I can’t imagine anything worse than drugging mothers, especially when these mothers are or become pregnant while on drugs. To drug unborn babies should be classified as criminal, but presently it is revered by the completely unethical mental ‘health’ community. This absurd and deluded group of people actually argues that the benefits of medication outweigh the risk to the unborn or newborn baby. 

Let’s compare the benefits to the risks.

  • Antidepressants (stimulants in the same category as LSD and cocaine): proven no more effective than a placebo.
    Risks/effects: suicide, homicide, stillbirth, spontaneous abortion, fatal birth defects, SIDS, psychosis, diabetes, coma, death via serotonin syndrome…
  • Mood stabilizers (anticonvulsants): Benefits? Perhaps prevention of seizures caused by antidepressants (stimulants)
    Risk: double the rate of suicide according to the latest data…
  • ‘Antipsychotics’ (misnamed, actually neruoleptics in the same class as rat poison): Benefits? You will sleep more, because you will be asleep most of the time (potentially involuntarily when the nurse gives you a shot in the behind)…
    Risk of death increased by a rate of 2.5 per increment of neuroleptic, with long-term use, shave off 25 years from your life. Evidence that these drugs are actually PRO-psychotics.

Please read the memo by Gottstein and the attached affidavits by Whittaker and Jackson. Here is a snippet:

(a) Neuroleptics dramatically increase the likelihood that a person will become chronically  disabled.  

(b) Long-term recovery rates are much higher for unmedicated patients than for those who are maintained on neuroleptic drugs. 

(c) Neuroleptics cause a host of debilitating physical, emotional and cognitive negative effects, including substantial brain damage, and lead to early death. 

(d) The new “atypical” neuroleptics are not better than the old ones in terms of their safety and tolerability, and quality of life may even be worse on the new drugs than on the old ones.  

III. Involuntary Administration of Neuroleptics is Experienced as Torture by Many…

Filed under: antipsychotics, Congress, forced 'treatment', Jim Gottstein, mothers act, Paxil in pregnancy, PsychRights, seizures, suicide, toxicity deaths, , , , ,

Pro-Bono Attorneys Defend NY Against Forced Drugging: Call for Volunteers

PsychRights
Law Project for Psychiatric Rights, Inc.
406 G Street, Suite 206, Anchorage, Alaska 99501 ~ (907) 274-7686 Phone ~ (907) 274-9493 Fax
NEWS RELEASE

FOR IMMEDIATE RELEASE

August 18, 2008

CONTACTS:
Dan Hazen
(315) 528-3385
dan@psychrights.org

Jim Gottstein
(907) 274-7686
jim.gottstein@psychrights.org

PsychRights’ Launches Pro Bono Recruitment Effort with MindFreedom’s Ann L Human Rights Alert

As part of their Joint Task Force on Mental Legal Advocacy & Activism, and in connection with last week’s MindFreedom Alert: Say “No” to NY Forced Psychiatric Drugging of “Ann L, the Law Project for Psychiatric Rights (PsychRights) today announced the launch of its effort to recruit pro bono attorneys to help defend New York citizens facing the horror of forced psychiatric drugging in the community.

PsychRights’ President, Jim Gottstein, said, “people think forced drugging makes the community safer, but the opposite is true. It is well established that psychiatric drugs forced on people increase rather than decrease violence.” “The idea that forced community psychiatric drugging makes people safer is a fraud perpetrated on the public by organizations like the Treatment Advocacy Center,” continued Mr. Gottstein.

The scientific evidence on this, the ineffectiveness of these drugs for most and extreme harm to all caused by these drugs, along with a legal analysis, has been put together for attorneys in Memorandum (Preliminary) Forced Psychiatric Drugging in the Community –Pro Bono Opportunity of Great Significance. Dan Hazen, PsychRights’ Northeast Coordinator said, “We hope members of the New York bar will read the memorandum and decide this is an issue deserving of pro bono services.”

Attorneys interested in signing on or desiring more information may contact either Mr. Hazen or Mr. Gottstein at the contacts above or below.

David Oaks, MindFreedom’s Director, said, “We are very pleased to collaborate with PsychRights, combining legal advocacy and grass roots activism.” In closing, Mr. Gottstein stated, “If nothing else, attorneys should be offended by the sham nature of the legal proceedings in which New York citizens are ordered by the courts to take these very debilitating, largely ineffective, and extremely harmful drugs.”

The Law Project for Psychiatric Rights is a public interest law firm devoted to the defense of people facing the horrors of unwarranted forced psychiatric drugging and electroshock. PsychRights is further dedicated to exposing the truth about psychiatric interventions and the courts being misled into ordering people subjected to these brain and body damaging drugs against their will. Extensive information about these dangers, and about the tragic damage caused by electroshock, is available on the PsychRights web site: http://psychrights.org/.

# # #

http://psychrights.org

Filed under: forced 'treatment', Jim Gottstein, MindFreedom, PsychRights, , , , ,

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