Law Offices of James B. Gottstein
Office of Counsel
Attorney for Faith J. Myers, Respondent
IN THE SUPERIOR COURT FOR THE STATE OF
JUDICIAL DISTRICT, AT
In The Matter of the Hospitalization )
FAITH J. MYERS )
) Case No. 3AN 03-277 P/S
MEMORANDUM IN SUPPORT OF MOTION TO DISMISS AND PRE-HEARING BRIEF
Respondent Faith J. Myers, has moved to dismiss (a) the Petition for 30-Day Commitment (Commitment Petition), and (b) Petition for Court Approval of Administration of Psychotropic Medication (Forced Medication Petition). This Memorandum is submitted in support of the motion and is also submitted as a Pre-Hearing Brief.
Involuntary Commitment and Forced Drugging are very serious invasions into the fundamental rights of people to be free of confinement and have control over what is done to their bodies and can not permissibly be undertaken lightly or cavalierly. Alaska Statutes provide that certain procedures be followed and the United States Constitution, under Opinions of the United States Supreme Court, sets a high bar before these fundamental rights can be taken away. Decisions by the Alaska Supreme Court suggest the constitutional protections it will decide are mandated by the Alaska Constitution will be even higher. The Petitions here are procedurally defective on their face and the state does not have a factual situation that meets the statutory and constitutional requirements for obtaining the draconian relief requested. In addition, the expert testimony offered by the state does not meet the criteria established by law for its acceptance. Finally, to the extent that the procedures utilized here fail to provide due process, they are fatally deficient, whether authorized or mandated by statute or not.
United States Supreme Court has issued clear guidance as to when it is Constitutionally permissible to confine someone for anything
other than the commission of a crime. In
Foucha v.Louisiana, 504
Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979), held that to commit an individual to a mental institution in a civil proceeding, the State is required by the Due Process Clause to prove by clear and convincing evidence the two statutory preconditions to commitment: that the person sought to be committed is mentally ill and that he requires hospitalization for his own welfare and protection of others. Proof beyond a reasonable doubt was not required, but proof by preponderance of the evidence fell short of satisfying due process. [footnote omitted]
Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action. Youngberg v. Romeo, 457 U.S. 307, 316, 102 S.Ct. 2452, 2458, 73 L.Ed.2d 28 (1982). "It is clear that commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection." Jones, supra, 463 U.S., at 361, 103 S.Ct., at 3048 (internal quotation marks omitted). We have always been careful not to "minimize the importance and fundamental nature" of the individual's right to liberty. Salerno, supra, 481 U.S., at 750, 107 S.Ct., at 2103.
In the very recent case of Kansas v. Crane, 534 U.S. 407, 409, 122 S.Ct. 867, 869 (2002), the US Supreme Court explicitly re-affirmed the necessity of compliance with these due process standards as follows:
"[W]e have consistently upheld such involuntary commitment statutes" when (1) "the confinement takes place pursuant to proper procedures and evidentiary standards," (2) there is a finding of "dangerousness either to one's self or to others," and (3) proof of dangerousness is "coupled ... with the proof of some additional factor, such as a 'mental illness' or 'mental abnormality.' "
Very important in Crane, is the that the U.S. Constitution requires specific admissible evidence proving both mental illness and dangerousness and a finding by the court as to both of them. And, as provided in Foucha, supra., this proof must be by clear and convincing evidence to pass constitutional muster.
The "proper evidentiary standards" with respect to expert opinion testimony as required by the U.S. Supreme Court in Crane and its predecessors can be found in Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 587-89 (1993); Kumho Tire Company, Limited v. Carmichel, 526 U.S. 137 (1999) and State v. Coon, 974 P.2d 386 (Alaska 1999).
In Daubert v. Merrill
Dow Pharmaceuticals, Inc., 509
Equally important, the Daubert court held that
trial judges must perform a “gate keeping role,” which requires them to “screen
[ ] proffered expert testimony.”
In order to qualify as “scientific evidence” [under FRE 702], an inference or assertion must be derived by the scientific method. Proposed testimony must be supported by appropriate validation . . . i.e., “good ground,” based on what is known. In short, the requirement that an expert’s testimony pertain to “scientific knowledge” establishes a standard of evidentiary reliability.
The burden of showing the reliability of challenged expert evidence is on the proponent of such evidence. See, e.g., Daubert v. Merrill Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1319 note 10 (9th Circuit), cert denied 516 U.S. 869 (1995).
The Daubert ruling was expanded and refined in Kumho
Tire Company, Limited v. Carmichel, 526 U.S. 137 (1999). Therein, the Supreme Court answered two
important questions concerning the scope and application of Daubert. First, the court held that the trial
court’s “gate keeping” role applies to all expert testimony, whether it is
based on scientific knowledge or on experience.
In State v. Coon, 974 P.2d 386 (
(1) The relevance of the proposed testimony under ARE 401;
(2) The qualifications of the expert under ARE 702(a);
(3) The reliability of the opinions under ARE 702(a);
(4) The factual basis is of the type reasonably relied on under ARE 703;
(5) The probative value is not outweighed by unfair prejudice.
Coon, 974 P.2d at 393.
The court also adopted, and vigorously defended, the “gate keeping” function that Daubert assigns to trial judges. Coon, 974 P.2d at 395-97. Thus, the court “required trial courts to insure that scientific evidence is both relevant and reliable.” Coon, 974 P.2d at 390. In performing the gate keeping role, trial courts should consider the four factors identified in Daubert:
(1) Whether the proffered scientific theory or technique can be (and has been) empirically tested (i.e. whether the scientific method is falsifiable and refutable);
(2) Whether the theory or technique has been subject to peer review and publication;
(3) Whether the known or potential error rate of the theory or technique is acceptable, and whether the existence and maintenance of standards controls the techniques operations; and
(4) Whether the theory or technique has attained general acceptance.
Coon, 974 P.2d at 395.
The Alaska Supreme Court also noted that since Daubert,
federal courts “are giving rigorous consideration to the reliability of
before admitting it. Coon,
974 P.2d at 397 and 66. This view is consistent with the U.S. Supreme
Court’s own assessment, i.e., Daubert and its progeny grant the trial
court broad “discretion to choose among reasonable means of excluding expertise
that is fausse and science that is junky.” Kumho Tire, 526
In Civil Commitment proceedings, the court should be particularly careful about the scientific validity under Daubert, Kumho Tire and Coon of any "expert" opinion offered to establish the dangerousness criteria, because as the United States Supreme Court said in Heller V. Doe, 509 U.S. 312, 324 113 S.Ct. 2637, 2644 (1993), "many psychiatric predictions of future violent behavior by the mentally ill are inaccurate." The state's witness on this issue, Dr. Hanowell has testified in his deposition that he does not have the requisite expertise nor scientific training to pass the Coon test to testify as to the future dangerousness of the Respondent or to have his opinion about whether the court should order medication accepted. See, Memorandum in Support of Motion in Limine to Exclude Psychiatric Testimony filed this same date
AS 47.30.730 is unconstitutionally vague because it fails to give fair warning of what conduct is proscribed and provides an insufficient standard restricting the discretion of the state or the court in applying it.
A statute may be
invalidated as impermissibly vague as a result of one or both of the following
deficiencies, as enunciated by the Supreme Court: (1) failure to give fair
warning of the conduct proscribed by law, and (2) absence of standards
restricting the discretion of governmental authorities or courts who apply the
law. [citations omitted] While the vagueness doctrine has been
employed most often in challenges to criminal statutes, civil statutes have
also been subject to vagueness challenges. [citations
omitted] A review of the
Doe, supra, 414 F. Supp at 451.
In Johnson v. Solomon, 484 F. Supp 278 (D. Maryland 1979), the following commitment standard was found unconstitutionally vague.
a person must be found affirmatively to possess a mental disorder, requires commitment for the protection of himself or others, needs inpatient medical care or treatment, and is unwilling or unable to be admitted voluntarily.
The invalidated standard is essentially equivalent to the "likely to cause harm to self or others or is gravely disabled" standard provided in AS 47.30.730(a)(1) and is similarly constitutionally defective.
AS 47.30.730(a)(7) requires the Petitioner to "list the facts and specific behavior of the respondent supporting the allegation [of mental illness, likelihood of harm and being gravely disabled]. The original Commitment Petition only listed the following conclusory allegations:
1. Ms. Myers exhibits clear evidence of a psychotic process
2. She is felt to be unable to provide adequately for her basic needs.
Apparently some time after it was filed a third item was listed as follows:
3. She is felt to be unable to provide adequately for her basic needs.
These are, as a matter of law, an insufficient recitation of facts and specific behavior as required under AS 47.30.730(a)(7) to support such a petition.
The state expects this court to issue an order giving it authority to administer any medication it may choose. This is impermissible under AS 47.30.837 because it necessarily requires an analysis of each medication requested to be administered against the Respondent's desires.
AS 47.30.837(d)(2) provides in pertinent part:
(2) "informed" means that the evaluation facility or designated treatment facility has given the patient all information that is material to the patient's decision to give or withhold consent, including
* * *
(B) information about the proposed medication, its purpose, the method of its administration, the recommended ranges of dosages, possible side effects and benefits, ways to treat side effects, and risks of other conditions, such as tardive dyskinesia;
* * *
(E) information about alternative treatments and their risks, side effects, and benefits, including the risks of nontreatment;
At his deposition, Dr. Halowell admitted that he did provide the Respondent with this information. See, pp 17-19 of the Hanowell Deposition. This alone mandates dismissal of the Forced Medication Petition.
Moreover the deposition testimony of Dr. Hanowell shows that he is too uninformed to provide the information required by law. Specifically, Dr. Hanowell testified that while he had heard that there were quite a few psychiatrists, including prominent ones that disagree that these drugs should be administered, he had not followed the literature on the subject, even after being informed of their existence. See, Hanowell Deposition, pp 30-31.
Some of the information that should inform anyone, including the court, when making a competent decision regarding the administration of psychotropic medications are the following studies.
1. Leon Epstein, "An Approach to the Effect of Ataraxic Drugs on Hospital Release Rates," American Journal of Psychiatry, 119 (1962), 36-47.
This was the first large scale study of hospital release rates in the 1950s for schizophrenia patients treated with and without neuroleptics, and it concluded that "drug-treated patients tend to have longer periods of hospitalization." P. 44.
2. Nina Schooler, "One year after discharge: community adjustment of schizophrenic patients," American Journal of Psychiatry, 123 (1967), 986-995.
This National Institute of Mental Health (NIMH) study looked at one-year outcomes for 299 patients who had been treated either with neuroleptics or placebo upon their admission to a hospital, and was the first long-term study conducted by the NIMH. The researchers found that "patients who received placebo treatment in the drug study were less likely to be rehospitalized than those who received any of the three active phenothiazines (thioridazine (Mellaril), fluphenazine (Prolixin), chlorpromazine (Thorazine)." SEE PAGE 991.
3. Robert Prien, "Relapse in Chronic Schizophrenics Following Abrupt Withdrawal of Tranquillizing Medication," British Journal of Psychiatry, 115 (1968), 679-86.
The critical finding of this NIMH study was that relapse rates rose in direct relation to dosage--the higher the dosage patients were on before the drugs were withdrawn, the greater the relapse rates. At the start of the study, 18 patients were on placebo, and only one got worse over the next six months (6%). Sixty-five patients were on 300 mg. of chlorpromazine at the start of the study, and 54% of these patients worsened after the drug was withdrawn. One hundred thirteen patients were on more than 300 mg. of chlorpromazine at the start of the study, and 66% of these patients got worse after drug withdrawal. SEE TABLE THREE, PAGE 684.
4. Robert Prien, "Discontinuation of Chemotherapy for Chronic Schizophrenics," Hospital and Community Psychiatry, 22 (1971), 20-23.
In this NIMH study, the earlier finding that relapse rates rose in correlation with neuroleptic dosage was confirmed. Only 2 of 30 patients who were on placebo at the start of the study relapsed during the next 24 weeks (7%). Twenty-three percent of the 99 patients who were on under 300 mg. of chlorpromazine at the start of the study relapsed following drug withdrawal. Fifty-two percent of the 91 patients who were on 300 to 500 mg. of chlorpromazine at the start of the study relapsed following drug withdrawal, and sixty-five percent of the 81 patients who were on more than 500 mg. of chlorpromazine at the start of the study relapsed following drug withdrawal. The researchers concluded: "Relapse was found to be significantly related to the dose of the tranquilizing medication the patient was receiving before he was put on placebo--the higher the dose, the greater the probability of relapse." SEE PAGE 22, AND 23
5. J. Sanbourne Bockoven Comparison of Two Five-Year Follow-Up Studies: 1947 to 1952 and 1967 to 1972, American Journal of Psychiatry, 132 (1975), 796-801.
In this study,
Other researchers who reviewed relapse
6. Maurice Rappaport, "Are there schizophrenics for whom drugs may be unnecessary or contraindicted?" International Pharmacopsychiatry, 13 (1978), 100-111.
In this 1978 study, Maurice Rappaport
and his colleagues at the
7. Pavel Muller and Philip Seeman, "Dopaminergic Supersensitivity after Neuroleptics: Time-Course and Specificity, Psychopharmacology 60 (1978), 1-11. Guy Chouinard, “Neuroleptic-induced supersensitivity psychosis,” American Journal of Psychiatry, 135 (1978), 1409-1410; Chouinard, “Neuroleptic-induced supersensitivity psychosis: clinical and pharmacologic characteristics,” American Journal of Psychiatry, 137 (1980), 16-20.
In the late 1970s, Canadian investigators identified the biological changes induced in the brain by neuroleptics that led to the higher relapse rates. Because the drugs dampen down dopamine activity, the brain tries to compensate by becoming "supersensitive" to dopamine. (The drugs trigger an increase in the density of dopamine receptors.) This perturbation in dopamine function makes the patients more biologically prone to psychosis and to worse relapses upon drug withdrawal. Chouinard concluded: "Neuroleptics can produce a dopamine supersensitivity that leads to both dyskinetic and psychotic symptoms. An implication is that the tendency toward psychotic relapse in a patient who has developed such a supersensitivity is determined by more than just the normal course of the illness . . . the need for continued neuroleptic treatment may itself be drug-induced." In other words, the neuroleptics both cause psychosis problems when they are given and also cause the problem when they are stopped.
8. George Gardos and Jonathan Cole, “Maintenance Antipsychotic Therapy: Is the Cure Worse than the Disease.” American Journal of Psychiatry, 133, January (1976), pager 32-36.
Jonathan Cole was the head of the NIMH and after a general review of the issue concluded: “An attempt should be made to determine the feasibility of drug discontinuance in every patient.” In other words, Mr. Cole is suggesting that all patients currently on neuroleptics should be given the opportunity to come off the drugs.
9. J. Leff, "The International Pilot Study of Schizophrenia: five-year follow-up findings," Psychological Medicine, 22 (1992), 131-145.
The first World Health Organization (WHO)
study that compared schizophrenia outcomes in "developed" and
"developing" countries was called The International Pilot Study of
Schizophrenia. It began in 1968, and involved 1202 patients in nine countries.
At both two-year and five-year follow-ups, the patients in the poor countries
were doing much better. The researchers concluded that schizophrenia
patients in the poor countries "had a considerably better course and
outcome than (patients) in developed countries. This remained true whether
clinical outcomes, social outcomes, or a combination of the two was
considered." Two-thirds of the patients in
10. Assen Jablensky, "Schizophrenia: manifestations, incidence and course in different cultures, A World Health Organization ten-country study," Psychological Medicine, suppl. 20 (1992), 1-95.
The second WHO organization study of this
type was called the Determinants of Outcome of Severe Mental Disorders. It
involved 1379 patients from 10 countries, and was designed as a follow-up study
to the International Pilot Study of Schizophrenia. The patients in this study
were first-episode patients, and 86% had been ill fewer than 12 months. This
study confirmed the findings of the first: two-year outcomes were much better
for the patients in the poor countries. In broad terms, 37 percent of the
patients in the poor countries (
WHO researchers noted that in the
developing countries, only 15.9% of patients were continuously maintained on
neuroleptics, compared to 61% of patients in the
SEE TABLE 4.10 ON PAGE 64 (copy of table reproduced from Mad in America because of poor copy, and page 90.)
11. Dr. Courtenay Harding’s studies.
Dr. Courtenay Harding conducted a number of studies regarding outcomes. She notes in page 730 that 50% of these patients never used medications, and then, in her interview with the APA Monitor, she notes, on page 11, that “all of those in her Maine and Vermont studies who had fully recovered had long since stopped taking medications.” Then, in her Empirical Correction papers, on page 143, that “It may be a small percentage (of patients) who need medication indefinitely.” She says it is a myth that patients need to be on medication all their lives.
12. The One Hundred Years of Schizophrenia study.
At the same time that the WHO was
reporting on poor outcomes in developed countries, Harvard Medical School
researchers published a study concluding that outcomes for schizophrenia
patients in the U.S. had declined since
the 1970s, to the point they were no better than they had been in 1900.
They found that since 1986, only 36.4% of patients in the
13. The Pilot Project Soteria Berne.
In this study,
Dr. Honowell by admitting he has not been following the professional literature on the problems with the drugs he is attempting to get the court to allow him to administer against people's wills and particularly his lack of knowledge about the poor long term outcomes that result from what he is proposing, disqualifies him from being in a position to testify as an expert in the state's attempt to override a patient's desire to be free from debilitating, mind-altering substances.
Moreover, it is the court and the court's job alone to determine the Respondent's competency. Any interpretation of AS 47.30.839 to the contrary is unconstitutional.
Thus, respondents appear to rely on the State's parens patriae interest as justification for overriding appellants' protests to the administration of these mind-altering drugs. There is no doubt that the State may have a compelling interest, under its parens patriae power, in providing care to its citizens who are unable to care for themselves because of mental illness (Addington v. Texas, 441 U.S. 418, 426, 99 S.Ct. 1804, 1809, 60 L.Ed.2d 323, supra). For the State to invoke this interest, "the individual himself must be incapable of making a competent decision concerning treatment on his own. Otherwise, the very justification for the state's purported exercise of its parens patriae power--its citizen's inability to care for himself * * * would be missing. Therefore, the sine qua non for the state's use of its parens patriae power as justification for the forceful administration of mind-affecting drugs is a determination that the individual to whom the drugs are to be administered lacks the capacity to decide for himself whether he should take the drugs" (Rogers v. Okin, 634 F.2d 650, 657 [1st Cir.], supra; see also, Matter of K.K.B., 609 P.2d 747, 750 [Okla.], supra). Such a determination is uniquely a judicial, not a medical function (see, Rogers v. Commissioner of Dept. of Mental Health, 390 Mass. 489, 458 N.E.2d 308, supra; Matter of Roe, 383 Mass. 415, 421 N.E.2d 40).
* * *
The State would bear the burden of demonstrating by clear and convincing evidence the patient's incapacity to make a treatment decision. If, after duly considering the State's proof, the evidence offered by the patient, and any independent psychiatric, psychological or medical evidence that the court may choose to procure (see, Judiciary Law § 35 ), the court determines that the patient has the capability to make his own treatment decisions, the State shall be precluded from administering antipsychotic drugs. [FN7] If, however, the court concludes that the patient lacks the capacity to determine the course of his own treatment, 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 State would bear the burden to establish by clear and convincing evidence that the proposed treatment meets these criteria.
(Emphasis Added) Rivers v. Katz, 495 N.E.2d 337, 343-4 (NY 1986).
right to privacy under the Alaska Constitution is perhaps the strongest in the
country. See, e.g., Valley Hosp. Ass'n, Inc. v. Mat-Su Coalition
for Choice, 948 P.2d 963 (
A woman's control of her body, and the choice
whether or when to bear children, involves the kind of decision-making that is
"necessary for ... civilized life and ordered liberty." Baker, 471 P.2d at 401-02. Our prior decisions support the further
conclusion that the right to an abortion is the kind of fundamental right and
privilege encompassed within the intention and spirit of
We stated in Breese v. Smith, 501 P.2d
159, 169 (
* * *
These rights may be legally constrained only when the constraints are justified by a compelling state interest, and no less restrictive means could advance that interest.
Valley Hosp.supra, 948 P.2d at 968, 969.
Respondent respectfully suggests the state has not come close to making the requisite showing.
AS 47.30.839(d) provides
(d) Upon the filing of a petition under (b) of this section, the court shall direct the office of public advocacy to provide a visitor to assist the court in investigating the issue of whether the patient has the capacity to give or withhold informed consent to the administration of psychotropic medication. The visitor shall gather pertinent information and present it to the court in written or oral form at the hearing. The information must include documentation of the following:
(1) the patient's responses to a capacity assessment instrument administered at the request of the visitor;
(2) any expressed wishes of the patient regarding medication, including wishes that may have been expressed in a power of attorney, a living will, or oral statements of the patient, including conversations with relatives and friends that are significant persons in the patient's life as those conversations are remembered by the relatives and friends; oral statements of the patient should be accompanied by a description of the circumstances under which the patient made the statements, when possible.
This statutory pre-requisite to granting the Forced Medication Petition has not been met and Respondent respectfully suggests this requires dismissal.
For the foregoing reasons, Respondent respectfully suggests both Petitions must be dismissed.
Law Offices of James B. Gottstein
James B. Gottstein
 The United States Supreme Court does not permit a person to be committed because that person is mentally ill and only “gravely disabled” but not dangerous. Thus, only if "gravely disabled" means dangerous under AS 47.30. is it constitutional.
Standards for commitment to mental institutions are constitutional only
if they require a finding of dangerousness to others or to self. Suzuki v. Quisenberry,
supra, at 1121-1126; Doremus v. Farrell, 407 F.Supp. 509, 514- 15 (D.Neb.1975). See also O'Connor v. Donaldson, 422
Doe v. Gallinot, 486 F. Supp. 983 (C.D. California 1979). See, also, Stamus v. Leonhardt, 494 F. Supp. 439, 451 ( (S.D. Iowa 1976), citing Doremus v. Farrell, 407 F.Supp. 509 (D. Neb. 1975):
Due process and equal protection require that the standards for commitment must be (a) that the person is mentally ill and poses a serious threat of substantial harm to himself or to others; and (b) that this threat of harm has been evidenced by a recent overt act or threat. The threat of harm to oneself may be through neglect or inability to care for oneself.
The State has admitted that the allegation of gravely disabled in the Petition for Commitment is not one that the Respondent is a danger to herself. See, Deposition of Robert Hanowell, MD., at pp 25 line 15 to page 26, line 9, which is attached to the Memorandum in Support of Motion in Limine to Exclude Psychiatric Testimony filed this same date. (Hanowell Deposition)..
 Copies of both Foucha and Crane are attached hereto for the court's convenience.
 Freye v.
 All of the studies mentioned here are attached as Exhibits A through Q.
 Respondent believes that AS 47.30.839 (f) makes this determination the court's alone, but if not, it is unconstitutional.