Forced Medication Case
(Faith Myers v. Alaska Psychiatric Hospital)
by James B. Gottstein, Esq.
On June 30, 2006, the Alaska Supreme Court ruled in our favor in this case. The court found Alaska's forced psychiatric drugging regime to be unconstitutional when the state forces someone to take psychiatric medications without proving it to be in their best interests or when there are less restrictive alternatives. KTUU, Channel 2, ran a story on it the same day, "Woman wins drug case in Supreme Court."
Alaska Statutes provide that if an involuntarily committed patient is "incompetent" to refuse medication, the hospital can force drug the person. We argued that it is unconstitutional to force drug someone without being able to prove (a) it is in their best interest, (b) it is a decision the person would make if competent, and (c) there are no less restrictive alternatives. The Supreme Court agreed with (a) and (c) and ruled with respect to (b) that the statutes take a different approach aimed at the same concept (basically advance directives).
The briefs, Opinion and related documents can be found at:
We put on an overwhelming and unrebutted case that the drugs were not safe nor effective, but the trial court ruled even though there was a "viable debate over whether the medications would help or hurt Faith," that was not relevant because the statute only considers competence. Our argument is it is unconstitutional to force drug someone, even if they are incompetent (which we denied in Faith's case, but it fell out of the appeal), unless the state can prove it is in the person's best interest. We also believe that since the basis is that the court must make the decision because the person is incompetent, it must make the decision the person would make if competent. Oral argument was held February 11, 2004 and on June 25, 2004, ordered additional briefing. The Anchorage Daily News published a story about Faith and her fight against forced drugging, Woman fights API forced-drug rules: Former patient takes issue to the Alaska Supreme Court, (Published: February 12, 2004). On March 4th, the Anchorage Press published a lengthy story, entitled "Keeping Faith." There was another story published July 26, 2004, in the Anchorage Daily News about Faith's efforts to reform practices at API, titled API patients soon to get more rights: One former patient fights for practices that will promote healing.
The state also moved to dismiss the case as moot and the court is going to consider this motion at the same time it decides the whole appeal.
Proceedings Below (in the trial court)
Faith Myers was picked up and dragged out of her apartment by the police forcing their way into her apartment while she was making dinner after her daughter filed a Petition for Initiation of Involuntary Commitment on February 21, 2003. On February 25th the Alaska Psychiatric Institute (API) filed petitions for 30 day Involuntary Commitment and Forced Medication Orders. A hearing was set for the same afternoon. Instead of the normal 15 minute hearing (at most where the respondent is represented by the Public Defenders Office (and almost always loses)), I entered the case. We filed a Motion to Dismiss and Motion in Limine to Exclude Psychiatric Testimony on February 28th and the trial was held on March 5th. In between, I took the deposition of the psychiatrist Robert Hanowell. Under Alaska Law if a person is "incompetent" to give "informed consent" to refuse the medication, the state gets to forcibly drug the respondent. Our position is the state has to show it is in the respondent's best interest under proper evidentiary standards. Dr. Loren Mosher, former head of schizophrenia research at the National Institute of Mental health and Dr. Grace Jackson another psychiatrist very knowledgeable about the effects of psychiatric medications testified on Faith's behalf. Among the evidence we submitted was "An Analysis of the Olanzapine Clinical Trials--Dangerous Drug, Dubious Efficacy," which has since been completely borne out. The state's defense was basically, this is what everyone does (standard of care).
The trial court ruled against us, saying that while
[T]here is a real and viable debate among qualified experts in the psychiatric community regarding whether the standard of care for treating schizophrenic patients should be the administration of anti-psychotic medication
and even though
[T]here is a viable debate in the psychiatric community regarding whether administration of this type of medication might actually cause damage to her or ultimately worsen her condition
and that the case was troubling," in light of the "real debate about the advisability of following the treatment path recommended by the psychiatrists," Alaska Statutes only concerned themselves with the competency issue.
We obtained a stay of the forced drugging order for a week to allow us to file a stay motion with the Alaska Supreme Court. We filed an appeal within the one week deadline and filed a motion with the Alaska Supreme Court to continue the stay. Under the terms of the trial court stay, this kept the stay in place until the Alaska Supreme Court ruled. However, the hospital illegally retaliated against her by not letting her leave the unit, including to go down to the cafeteria for meals. The trial court then issued another order which addressed issues we had pointed out to the Alaska Supreme Court it hadn't ruled upon.
Under Alaska Law, before the expiration of the 30 day involuntary commitment, the state can file for a 90 day commitment and then successive 180 day commitments. For these, the respondent has the right to ask for a jury trial. We didn't ask for a jury for the 90 day commitment and forced medication hearing, but did for the 180. The state agreed to dismiss the commitment and forced medication petitions after the opening statements of the 180 day commitment trial and Faith was let go on July 3, 2003, without a forced drugging order becoming effective against her, although the hospital did manufacture a few "emergencies" and injected her with Haldol on two or three occasions, including the night before the jury trial started.
More court documents can be found at http://psychrights.org/States/Alaska/CaseOne/.
Last modified 8/9/2013
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