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 PR
MOTION FOR RECONSIDERATION
MOTION FOR RELIEF FROM JUDGMENT
Respondent hereby moves under Civil Rule 77(k) for reconsideration of this court's April 19, 2003, Order granting the state's petitions for 90 day commitment and forced medication (90 Day Order), which was distributed on April 21, 2003, and, or in the alternative, for relief from judgment under Civil Rule 60(b)(6).
At page 9 of the 90 Day Order, this court, recited that "Both Dr. Kletti and Dr. Hanowell testified that the available acute care facility, API, is not able to adequately treat Ms. Myers unless she is medicated." On page 10 of the 90 Day Order, the court recited "Dr. Kletti and Dr. Hanowell testified that the therapeutic treatment programs at API are not adequate for Ms. Myers if she is not agreeable to taking medication in addition to participating in treatment." There are two critical points with respect to this testimony by the state that the court has overlooked and misapplied the statute and other law. First, under AS 47.30.740(a)(2) for a 90-day commitment (as opposed to a 30-day commitment), one of the criteria is that "the respondent has received appropriate and adequate care and treatment during the respondent's 30-day commitment." The court's 90-day Order does not acknowledge this requirement and, as set forth in the 90-day Order, the state has admitted this criterion has not been met. This is absolutely fatal to the state's case for the 90-day commitment. The court overlooked this critical admission of fact and therefore misapplied the law.
The court seems to have accepted the state's argument that even though API does not provide non-medication treatment for Ms. Myers' condition that it should still be allowed to confine her without providing adequate treatment because they have been prevented from giving medication. This is a fallacy. Ms. Myers has committed no crime and her confinement can only be justified if the state proves that it is providing adequate treatment. If the state wants to confine her under a 90-day commitment, it is required to prove that it has provided adequate treatment during the 30-day commitment period and that necessarily has to include a non-medication treatment program for those that API is not allowed to medicate -- a treatment program that API is not providing.
The statutory scheme unequivocally provides that patients have a right to refuse medication unless they are proven incompetent to do so. API has obviously subverted this statutory scheme in practice by automatically deeming someone incompetent if they don't consent to take the medication. See Dr. Hanowell's deposition, at page 36, where he testifies that in nearly all of the 100 commitment proceedings he has done, forced medication was also sought. API, contrary to the statute, simply does not offer non-medication treatment of any significance.
The court also has the unrebutted testimony of Drs. Smith and Mosher that there are non-medication treatments that are likely to benefit Ms. Myers and that it did not appear she was receiving them at API. For example, Dr. Mosher testified at the March 5th hearing:
0174 . . .
19 Q . . . [I]n your opinion, is
20 medication the only viable treatment for schizophrenia
21 paranoid type?
22 A Well, no, it's not the only viable treatment. It is
23 one that will reduce the so-called positive symptoms, the
24 symptoms that are expressed outwardly for those kinds of
25 folks. And that way they may seem better, but in the long
1 run, the drugs have so many problems, that in my view, if
2 you have to use them, you should use them in as small a
3 dose for as short a period of time as possible. And if
4 you can supply some other form of social environmental
5 treatment -- family therapy, psychotherapy, and a bunch of
6 other things, then you can probably get along without
7 using them at all, or, if at all, for a very brief period
8 of time. But you have to be able to provide the other
This is from someone who has a wealth of experience far beyond those of the state's witnesses:
8 have you had a lot of experience with people with
10 A Oh, dear. I probably am the person on the planet
11 who has seen more acutely psychotic people off of
12 medication, without any medications, than anyone else on
13 the face of the planet today.
In its previous rulings in this case, the Court has given short shrift, or totally ignored the many instances where Respondent has conclusively demonstrated a failure to comply with the statutory predicates to commitment and/or forced medication. In contrast to this apparently cavalier attitude by the court regarding requiring compliance with the statute by the state, even when the court acknowledged that the Respondent had demonstrated "a real and viable debate . . . regarding whether the standard of care for treating schizophrenic patients should be the administration of anti-psychotic medications" and that "she has amply demonstrated that there is a real debate about the advisability of following the treatment path recommended by the psychiatrists in her case," and when Respondent showed, as a constitutional matter that the state had to prove the recommended treatment was in her best interests, the court ruled that strict compliance with the statute alone was required. It is hard to escape the conclusion that the court has heretofore unevenly required adherence to the statutes. The Respondent has been held to an impossibly high standard, while the state has been allowed to ignore statutory requirements with impunity.
The bottom line with respect to adequate treatment is that the statute requires API to have provided adequate treatment, it has admitted it has failed to do so, a fact the court has acknowledged, and it was a misapplication of the law to these admitted facts for the court to grant the 90-day Petition. There is no discretion involved. The court erred in granting the petition on this basis alone. The court should correct this error by granting reconsideration and denying the 90-day Commitment Petition.
The other main oversight of the court with respect to the state's admission that it has not provided adequate treatment is that Dr. Kletti was not truthful in the 90-day Petition with respect to this issue. In the (amended) Petition for 90-day Commitment, which was the one proceeded under, as required by the statute, Dr. Kletti stated under oath that "The respondent has received appropriate and adequate care and treatment during his/her 30-day commitment." As set forth above, the court has acknowledged that Dr. Kletti testified "API, is not able to adequately treat Ms. Myers unless she is medicated."
It turns out that this type of untruthfulness by state employed psychiatrists to support legal action against their putative patients is common:
Experts frequently . . . subvert statutory and case law criteria that impose rigorous behavioral standards as predicates for commitment . . .
This combination . . . helps define a system in which (1) dishonest testimony is often regularly (and unthinkingly) accepted; (2) statutory and case law standards are frequently subverted; and (3) insurmountable barriers are raised to insure that the allegedly "therapeutically correct" social end is met . . .. In short, the mental disability law system often deprives individuals of liberty disingenuously and upon bases that have no relationship to case law or to statutes.
Psychiatrists explicitly acknowledge that they regularly lie to the courts in order to obtain forced treatment orders. E. Fuller Torrey, M.D., probably the most prominent proponent of involuntary psychiatric treatment says:
It would probably be difficult to find any American Psychiatrist working with the mentally ill who has not, at a minimum, exaggerated the dangerousness of a mentally ill person's behavior to obtain a judicial order for commitment.
(emphasis added) Torrey, E. Fuller. 1997. Out of the Shadows: Confronting America's Mental Illness Crisis. New York: John Wiley and Sons. 152.
It is the court's solemn duty to protect people such as the
Respondent here from this type of dishonesty by the state's psychiatrists by
carefully evaluating the truth of their testimony rather than uncritically
accepting it or worse yet, knowingly accept false testimony. Otherwise, what is supposed to be one of the
crowning achievements of the
Its toxin infects all participants in the judicial system, breeds cynicism and disrespect for the law, demeans participants, and reinforces shoddy lawyering, blase judging, and, at times, perjurious and/or corrupt testifying. The reality is well known to frequent consumers of judicial services in this area: to mental health advocates and other public defender/legal aid/legal service lawyers assigned to represent patients and criminal defendants who are mentally disabled, to prosecutors and state attorneys assigned to represent hospitals, to judges who regularly hear such cases, to expert and lay witnesses, and, most importantly, to the person with a mental disability involved in the litigation in question.
Sanist Attitudes, supra, at 34. This court must not allow itself to be subverted in this way.
Perhaps the other most clear example of this process at work in this case is how the state's testimony to this court is belied by its own internal documents as conclusively demonstrated by Respondent at the 90-Day Hearing and essentially ignored by the court.
While for a 30-day commitment the state may only have to prove that the respondent is "a danger to herself or others or gravely disabled," for the 90-Day Commitment, under AS 47.30.740(a)(1) the state must prove:
that the respondent has attempted to inflict or has inflicted serious bodily harm upon the respondent or another since the respondent's acceptance for evaluation, or that the respondent was committed initially as a result of conduct in which the respondent attempted or inflicted serious bodily harm upon the respondent or another, or that the respondent continues to be gravely disabled, or that the respondent demonstrates a current intent to carry out plans of serious harm to the respondent or another
Under AS 47.30.915(7):
(7) "gravely disabled" means a condition in which a person as a result of mental illness
(A) is in danger of physical harm arising from such complete neglect of basic needs for food, clothing, shelter, or personal safety as to render serious accident, illness, or death highly probable if care by another is not taken; or
(B) will, if not treated, suffer or continue to suffer severe and abnormal mental, emotional, or physical distress, and this distress is associated with significant impairment of judgment, reason, or behavior causing a substantial deterioration of the person's previous ability to function independently;
Respondent's Exhibit S admitted at the 90-Day Hearing is a copy of the Treatment Plan and Updates thereto. These are the actual hospital records kept in the ordinary course of business that the clinicians use for treatment. Under the evidence rules, such records are automatically admissible because it is assumed that records used in the operation of an organization are not likely to be doctored. This is in stark contrast to the statements made to the court in support of forced treatment (commitment and medication), which are prepared for no other reason than to support the organization’s position in litigation. Moreover, the hospital's records are admissions of a party.
The Treatment Plan lists three numbered Problems that Respondent needed to work on: 1. Disturbance of Thought, 2. Dangerousness to Others, and 3. Non-compliance with Medication. Being gravely disabled is not listed as a problem in the Treatment Plan and neither is being a danger to self.
There is no controversy over No. 1, Disturbance of Thought, although it is clear through Dr. Smith's testimony that the way Ms. Myers is being treated at API is exacerbating her thought process problems. See, Exhibit 1. No. 3, Noncompliance with Medication is a completely irrelevant and improper consideration with respect to either commitment or forced medication and is therefore also not at issue in these proceedings, except to the extent that it was illegally used by the state as a reason for continued hospitalization.
Thus, the only relevant listed Problem is No. 2, Dangerousness to Others. The initial Treatment Plan, on February 24th, states that the only manifestation of dangerousness to others is "Threats to people in the community." This is legally insufficient to sustain a commitment petition.
On the first Update, which was March 3rd, the only reasons listed for continued hospitalization are "Discharge may exacerbate illness" and "medication stabilization." Being a danger to self or others is not checked. Since the hospital was not authorized to administer any medication citing "Medication stabilization" as a reason to continue hospitalization is improper and really just highlights the hospital's inability to treat someone they are not allowed to medicate. "Discharge may exacerbate illness" is not an involuntary commitment criteria and thus does not support an involuntary commitment decision. "Severe impairment of level of functioning" is not checked.
On the next Update, which was March 14th, "Severe impairment of level of functioning" was checked along with "Discharge may exacerbate illness," while "medication stabilization" is not checked. Again, being a danger to self or others is not checked. In the Progress Toward Goals section, with respect to Problem No.2, the Treatment team stated "Occasional anger outburst but 0 physical/violent behavior."
The next update was March 20th. In this update, the reasons stated for continued hospitalization are "Lack of placement options," "legal proceedings - appeal of commitment and involuntary medication," and "severely impaired disorder of thoughts of perception." Neither lack of placement options or legal proceedings are grounds for commitment. Once again, being a danger to self or others is not stated to be a reason for continued hospitalization and neither is severe impairment of level of functioning. This is the update in which Problem No. 2, Dangerousness to Others is marked as resolved.
The next update was March 26th. The only reasons noted for continued hospitalization at this point are "legal process, medication stay" and "severely impaired disorder of thoughts of perception." Once again, being a danger to self or others is not stated to be a reason for continued hospitalization by the treatment team. Problem No. 2, Dangerousness to Others is again marked as resolved.
The next update is April 4th. The only reasons for continued hospitalization stated are "severe impairment of level of functioning" and "severely impaired disorder of thoughts of perception." Problem No. 2, Dangerousness to Others is noted as "Maintaining Current Level of Functioning." In the description area, for Problem No. 2., Danger to Others, the only thing stated is "aggressive." Being aggressive does not constitute a danger to others as a matter of law, let alone come anywhere near to having "attempted or inflicted serious bodily harm . . or demonstrate[d] a current intent to carry out plans of serious harm" as required for a 90-day involuntary commitment under AS 47.30.740(a)(1).
The next update is April 8th. The only reasons for continued hospitalization stated by the treatment team are "severe impairment of level of functioning" and "severely impaired disorder of thoughts of perception." Once again, being a danger to self or others is not stated to be a reason for continued hospitalization by the treatment team.
These treatment records consistently show that Ms. Myers does not meet commitment criteria. These official treatment records of the hospital through Ms. Myers' treatment team, which records are relied upon for her treatment, as well as all of the other hospital's records, are in stark, startling and disturbing contrast to the statements under oath contained in the 90-Day Petition prepared solely to support the state’s position in this litigation. These records are also in stark, startling and disturbing contrast to the oral testimony of the state's witnesses and demonstrate again the unreliability of these witnesses.
In addition to the palpably untrue statement discussed above about adequate treatment contained in the 90-Day Petition, Dr. Kletti states under oath in the 90-Day Petition that "The respondent has attempted to inflict or has inflicted serious bodily harm upon himself/herself or another since his/her acceptance for evaluation." This is simply another untrue statement made by Dr. Kletti under oath where he "at a minimum, exaggerated the dangerousness of a mentally ill person's behavior to obtain a judicial order for commitment" as Dr. Torrey, supra, puts it. There is nothing in the hospital's records indicating any attempt to inflict serious bodily harm, nor, in utter contrast to Dr. Kletti's statement under oath in the 90-Day Petition was there any testimony that she had attempted to inflict serious bodily harm.
As briefly mentioned in Respondents Opposition to Expedited Consideration, investigation reveals that another statement under oath in the 90-Day Petition turns out to be untrue. Dr. Kletti stated under oath in the 90-Day Petition that "The evaluation staff has considered, but has not found any less restrictive alternatives available that would adequately protect the respondent or others." Before getting to that, however, Respondent will point out that there was no testimony from any of the state’s witnesses that a less restrictive alternative was considered. Instead, what we had was the following:
2 THE COURT: I think I want to know whether or not
3 you're aware of a less restrictive alternative and answer
4 it in the alternative, if you would, please. One level
5 I'm understanding is the question about whether or not
6 this patient should be involuntarily committed, and then
7 it's yet another level as to whether or not you think
8 there's a less restrictive alternative to administering
9 psychotropic medication.
10 A Okay.
11 THE COURT: Can you answer that question?
12 A Yes, Your Honor.
13 THE COURT: In other words, is it an alternative
14 that she be involuntarily committed at API and not have
15 this medication administered to her?
16 A I feel that that would be insufficient to address
17 her needs. . . .
0085 . . .
3 THE COURT: .....let me explain. I want to know,
4 because I have no medical training, I'm just a judge. If
5 this person is -- if you're concerned that the environment
6 is posing a potentially -- a threatening situation to her
7 that could harm her because of where she was living, and
8 moving her, even involuntarily, into API where she's in,
9 what I think you said in your deposition would be a
10 structured environment, where we know she's going to be
11 able to be fed appropriately and not sleeping in a crawl
12 space and what not. Is that an alternate that would
13 provide adequate treatment for her, as opposing to
14 administering that medication?
15 A Regrettably, it would not be.
16 THE COURT: Okay. Why not?
17 A It would be, if I could maybe just draw a parallel
18 between general medicine and psychiatry. It would be
19 similar to hospitalizing the person with diabetes and not
20 giving them insulin or giving them oral medication to
21 treat their diabetes.
Leaving aside that Dr. Hanowell's statement that not treating Ms. Myers with medication is analogous to not treating diabetes with insulin either (a) demonstrates Dr. Hanowell's extreme ignorance regarding the complete lack of any evidence to support that statement, or (b) is a deliberate misstatement of fact intended to mislead the court, the foregoing portion of the transcript demonstrates that no alternative was considered. This is reinforced by Dr. Hanowell's Deposition testimony:
8 Q Alternatives to medication.
9 A Alternatives to medication. We provide that.
10 We provide alternatives to medication to supplement --
11 not really alternatives, but we provide interventions
12 here at this hospital that supplement pharmacotherapy.
13 Q So you didn't really provide her with --
14 discuss alternative treatments to medication?
15 A I did -- I didn't discuss those interventions
16 with her at this hospital in detail. However, those
17 have been discussed with her by her nursing staff. I
18 have no question of that. We do provide unit --
19 provide groups and various activities and so on.
20 Q Is that an alternative to medication?
21 A In her situation, that would not be an
22 acceptable -- it would not be adequate treatment for
23 her illness.
(emphasis added). Hanowell Deposition, page 20.
as both Drs. Mosher and Smith testified to, there are other treatment
alternatives. And with respect to the
specific issue of the
Here again then, statements made by the hospital to the court under oath, both in the 90-Day Petition as well as in in-court sworn testimony, turn out to be untrue. These untrue statements were made in order to obtain court ordered treatment that is not justified under law by the true facts. Respondent has thus demonstrated that Professor Perlin's description of how dishonest testimony is used to subvert the court process and deny the legal rights of citizens has happened in this case.
The next question to be answered is what effect these demonstrated misstatements of fact to the court by the state's witness have, as a matter of law, on the validity of the 90-Day Order. They can be summarized as follows:
1. Adequate treatment during the 30-day commitment -- fatal.
2. Consideration of less restrictive alternative -- fatal.
3. Inflict serious bodily harm -- requires further analysis.
As mentioned, the failure of API to adequately treat Ms. Myers during the 30-day commitment is fatal, as a matter of law, to it being entitled to a 90-day commitment. The same is true that API did not consider a less restrictive alternative. These are statutory predicates to a 90-day commitment and if the court is going to be even handed in following statutory mandates, it has to grant reconsideration and vacate its 90-day commitment order. This court held that strict compliance with the statutory predicates is required and both of these statutory predicates are unquestionably absent. This should be sufficient with respect to involuntary commitment, but it seems imprudent not to address some additional issues.
While it is clear that Dr. Kletti's statement under oath in the 90-Day Petition that Respondent has attempted to inflict serious bodily harm is not true, the question arises whether that is independently fatal to the 90-Day Petition being granted. Since the statute provides that someone being "gravely disabled" can justify a 90-day commitment, this must be analyzed. First, the court has misapplied controlling authority from the United States Supreme Court that only harm to oneself or others justifies confinement for mental illness.
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
(emphasis added). Id., 504
In the 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 dangerousness being coupled with mental illness to satisfy due process requirements:
"[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.' "
The United States Constitution 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 sufficiently dangerous to satisfy these due process requirements under AS 47.30. is it constitutional:
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.
added). Doremus v. Farrell, 407 F.Supp. 509 (D.
The State changed its testimony regarding whether the allegation of gravely disabled means serious harm to self after this point was brought up. In his deposition, Dr. Hanowell admitted that gravely disabled as used by him, presumably following hospital policy, did not include harm to oneself:
15 Q Okay. Now, you marked "gravely disabled."
16 What does that mean? What standard do you use to
17 determine what gravely disabled means?
18 A Well, basically, that she is unable to
19 provide for her basic needs of food, clothing and
21 Q Is that different than causing harm to
23 A Yes, sir.
24 Q How is that different?
25 A Danger to self usually implies suicidality
1 other willful self-injurious behavior.
Under the controlling United States Supreme Court authority cited above, as used by Dr. Hanowell and API, "gravely disabled" does not pass constitutional muster for involuntary commitment. That, after the fact, the state comes back and tries to bootstrap a different meaning than they have used in the past, and used in this case before this point was brought up, in order to pass constitutional muster, can not be accepted.
Finally, with respect to the 90-day commitment part of the 90-Day Order, the court's finding that the state met its burden in this regard by "clear and convincing evidence" can not fairly stand in the face of the state's witnesses' demonstrated unreliability in their testimony. A careful review of the evidence reveals that the state's witnesses were not truthful with respect to a number of critical matters and regularly, at a minimum, exaggerated Respondent's behavior in order to convince this court to grant their petitions. Under these circumstances, a finding that their testimony is "clear and convincing" can not fairly stand. This, of course, is especially true of any "opinions" regarding satisfaction of statutory criteria.
In addition to the state's inability to meet its burden to prove gravely disabled by clear and convincing evidence by the sheer weight of its mendacity, the court has the expert opinion testimony of Dr. Smith that Ms. Myers is not a danger to herself or others and is not gravely disabled. This is also supported by the other testimony in the case, some of which has been set forth above.
For the foregoing reasons, with respect to the involuntary commitment portion of the 90-Day Order, this court must (1) grant reconsideration, (2) vacate the 90-Day Order, and (3) Order Ms. Myers to be discharged posthaste.
In evaluating whether the court has overlooked facts and/or misapplied the law, the state's witnesses' propensity to exaggerate and outright lie in support of these forced treatment petitions must be taken into consideration. The state's witnesses have been shown to be consistently unreliable. Thus, again, the state's proffered expert opinion testimony that Ms. Myers lacks capacity to give informed consent can not achieve clear and convincing evidence status. And again, Dr. Smith's expert opinion testimony that she does have that capacity defeats a clear and convincing finding under these circumstances.
Moreover, a careful review of Ms. Myers' testimony shows that Dr. Smith's expert opinion testimony is accurate. For example, with respect to the issue of acknowledging having a mental illness, while Ms. Myers refuses to agree to use the term "mental illness" to describe her condition, as conclusively demonstrated by her testimony, portions of which are set forth below, she clearly understands that she does. Similarly, the court's conclusion that "she does not acknowledge that she has benefited from the use of psychotropic medications in the past" misconceives Ms. Myers' testimony. The court's statement at page 15 of the 90-Day Order that "Dr. Smith's opinion that Ms. Myers actually does appreciate that she is mentally ill [in her own way] is one that I cannot reconcile with Ms. Myers' testimony" overlooks and misconceives Ms. Myers' testimony on this point as set forth below. Ms. Myers clearly acknowledged that she benefited from medications in the past and the court's statement(s) to the contrary overlooks or misconceives this testimony. She also clearly articulated how the newer medications created huge problems for her. Similarly, the court's statement at page 16 of the 90-Day Order that "there is no evidence [Ms. Myers] is willing to submit to any form of treatment that is likely to help improve [her psychotic state]" is incorrect. As set forth in the previous footnote, Dr. Smith testified that she is willing to work with people who do not try to force her. The court's statement at page 16 that "she does not now rationally discuss a treatment plan that would allow her a realistic option of being able to leave API and return to the community" is completely circular. The court by this is saying it is irrational for her to refuse to take medication because accepting the medication is the only way that she can get out of API. The same logic is used by the court on the following page when it found her objections to the medication unreasonable because she is suffering the hardship of API by resisting taking them. Under this logic, no one can ever rationally refuse the medication -- a result that is abhorrent to the statute and constitution. Rather than participating in creating this inescapable trap for Ms. Myers (or, as Professor Perlin describes it, raising "insurmountable barriers") this court should enforce her right to refuse medication.
15 He called what I had a war-like experience.
16 Somebody who didn't speak the language in a war-like zone,
17 where a great many scary things were going on, and he felt
18 that had been what had caused the breakdown. And he said
19 that as soon as I rested and had good nutrition, built my
20 body back up, that I would be able to resume my life and
21 he fully intended to wean me down immediately to one
22 milligram or two milligrams to just one pill of two
23 milligrams each, and then off, right away, within six
24 months, if not earlier.
25 Q Did that happen?
1 A It did not happen, because the stressors in my life
2 immediately picked up and he did not feel that it was wise
3 to take me off right away. So he kept me on for -- well,
4 in effect, I had been on it for 22, 23 years, before I
5 went off of it and they put me on risperidone. . . .
0126 . . .
17 He took me to Dr. Adasiak's, the decision was
18 made to go off the navaine and onto just the risperidone.
19 And within two weeks, I think even less than that, I was
20 hearing voices, some familiar voices, a lot of commanding
21 voices, one in particular that ordered me all over the
22 city, claiming to be God.
23 Q Now, had this ever happened before, to you?
24 A No. No, sir, it never had. It was as though the
25 risperidone punched a big hole in my brain that let all of
1 these spirits or voices into my brain. And it didn't get
2 better, sir, it just got worse and worse and worse.
3 Q So, of course, the doctors let you off of it, right?
4 A No, sir, they kept me on it. I kept telling them
5 what the problem was. I asked my son --well, my son
6 remembers what it was like the day that I broke down and
7 told him, please take me to API, to a hospital, take me
8 somewhere, to somebody who can take care of this, because
9 otherwise you'll have your mother running through the
10 streets with blue hair, screaming her head off. . . .
12 A This was just before he took me to API the first
14 Q And what date -- do you remember what date it was?
15 A I believe it was May the 5th of 1999.
16 Q And you went voluntarily?
17 A I asked him to take me, because I needed help.
Here, contrary to the statements of the court in its 90-Day Order, Ms. Myers both recognizes her mental illness (while not necessarily terming it such) and not only shows a willingness to seek treatment, but aggressively seeking it. It also shows she voluntarily took her original medication, Navane, for 22 years.
0129 . . .
19 I had to learn new ways to make decisions,
20 because those voices would continually try to control and
21 manipulate my actions. It was largely a control and
22 manipulation problem. It seemed like the voices were
23 always trying to control and manipulate my actions, and I
24 had to fight against them taking total control of my life.
Here, Ms. Myers again recognizes her mental illness (while not necessarily terming it such).
0131 . . .
6 And I was going to stay on the navaine, because I had
7 never thought that the navaine had been a problem before.
8 However, like I say, the navaine has a very tranquilizing
Here, contrary to the court's characterization of her testimony, Ms. Myers testifies that she was previously willing to take the medication she had found useful (for 22 years as set forth above).
1 Q Okay. And then what happened?
2 A The voices just got worse, and --
3 Q And this was after going off risperidone?
4 A Yes, sir. As soon as they knew that I went off the
5 medication, all of a sudden I had to fight a tremendous
6 amount of voices,
Here, Ms. Myers again recognizes her mental illness (while not necessarily terming it such). Ms. Myers also describes the problems created by the switch in medications instigated by the psychiatrist.
0133 . . .
21 However, I was still, like I
22 say, noticing a great many effects that were happening to
23 me, that I had never seen happen before under the navaine.
Here Ms. Myers very cogently articulates problems with the new drug, Risperidone (Risperdal) that she had been given.
1 of them that I recognized. And so, these were all very
2 new to me, these symptoms, I guess you would call them
3 symptoms. I guess I would call them special effects,
Here again, Ms. Myers acknowledges that she has a mental illness (although not terming it as such).
1 I lived in my car, it was the
2 middle of winter. I had very little food, except for what
3 other people gave me, so mostly I was like one of the
4 street people, sir. At that time, I think the whole
5 problem I had was my homelessness, my lack of income, and
6 the cold, which prevented me from being able to sleep
8 My son and I had a conference, and he said if I
9 would go back on the medication that he would fund my
10 place of residence. That was the stipulation -- if I
11 would go back on medication, he would help me get into a
12 residence, but I had to go right away, back to
13 Southcentral Counseling, and sign up with them again,
14 which was not my choice, and ask them to give me
15 medication again.
16 Q Did you do that?
17 A Yes, sir, I did. I was kind of over a barrel . . .
1 A This was in the year 2000. December of 2000 . . .
1 at that point, it was made very clear to me that I
2 either take the zyprexa, or some other choice that they
3 picked out, or I would very shortly be court-ordered to
4 take medication. I told Dr. Hanowell that I would
5 cooperate, because I had told my son I would cooperate,
6 and I always keep my promises.
7 I did try the zyprexa. I was not impressed with it.
8 However, because shortly afterwards they did court-order
9 me to a 30-day commitment and they did court-order me to
10 enforced medication, because they were so afraid that I
11 would go back on my promise to take the medication, that
12 from then on it was simply a contest of wills to make sure
13 that I was medicated. However, I promised my son that I
14 would take the medicine, and I did take the medicine for a
15 full year. . . .
22 that course of time, like I say, the zyprexa pretty much
23 tranquilized me, almost like the navaine did, but with a
24 different effect.
At the end of this excerpt, Ms. Myers cogently describes the effects of the zyprexa. The rest of the excerpt has been provided to show how the court misconceived Ms. Myers' decision-making process as irrational as well as to demonstrate that it is API through its failure to keep promises and using its power to get court orders to force her to take medications she knows to be harmful to her has set up the distrust that Ms. Myers has quite legitimately developed towards API.
0140 . . .
22 And at that time I was not concerned so
23 much about being on the zyprexa. I was very content with
24 my life. I noticed a few changes going on that worried
25 me, but I was not too -- I was content with what was going
1 on. I had kept my promise, I had a home, I had a husband,
2 and I had a purpose in life, which was to help advocate
3 for people in mental health.
Here, Ms. Myers demonstrates that she recognized the benefits of the medication she was taking at that time.
0141 . . .
4 Along about September, October of 2001, somewhere in
5 the summer there were some things that happened. That was
6 a very good summer for me. But along about that time, I
7 noticed some side effects that I had had before from being
8 in other situations. I noticed that those -- what can I
9 say? I noticed that the zyprexa did not totally screen
10 out the problems I had had earlier. I noticed that they
11 were gradually coming back in full force. The ones that I
12 reported about the risperidone. And not only were they
13 coming back in full force, but frighteningly so, sir. The
14 zyprexa seemed to be a door that opened up some very scary
15 effects for me.
Here Ms. Myers, very cogently describes how the medication regime she was on started creating problems for her -- some serious problems.
0144 . . .
6 A I need to point out to you that one of the things I
7 learned early on is that proximity is what usually is the
8 key factor here.
9 Q What do you mean by that?
10 A Proximity to certain people, proximity to certain
11 locations. There were phone numbers that if I called
12 them, like API or Southcentral Counseling, that I would
13 immediately receive a signal in my ear which would blank
14 out my memory and cause me to be disoriented and confused.
15 I would have the same signal that would come when I called
16 my insurance, State Farm, Roy Sayers' office. And I took
17 note of these particular incidents when I would call
18 people on the phone, state and government officials, and
19 find that my brain was scrambled after calling them. So I
20 learned to avoid using the telephones. I learned to avoid
21 certain types of places where people would gather. It was
22 very difficult for me to walk down to Carrs, because
23 sometimes when I went down to Carrs to shop with my
24 husband, I would feel kind of slimed when I would be by --
25 walk by certain people. I tried to explain to my husband
1 how I felt about that. He did not really hear me. I
2 found that it was much better for me if I was able to go
3 out of town in my car and spend some time alone in quiet,
4 in nature, away from people. I found that it was much
5 more restful and the effects of being around those special
6 effects were greatly dissipated by being out in the open
7 fresh air and away from people, sir. . . .
12 THE COURT: By special effects, do you mean voices
13 or lights, or what do you mean by that?
14 A I mean voices, I mean anything that would try to
15 control me, or disorient me, or manipulate me as to my
Here, Ms. Myers again acknowledges her mental illness (although not terming it as such).
23 A I've been off all medication since March of 19 --
24 excuse me, since March of 2002.
25 Q Except for the one injection that you had at API?
1 A Right. The one injection that I've had in API.
2 However, I have been talking about the fact that being
3 around certain areas and certain places does exacerbate
4 some of the symptoms that someone might call a psychotic
5 effect, or something. However, during all this time, I
6 pretty much used common sense coping strategies that I
Here again, Ms. Myers again acknowledges her mental illness (although not terming it as such) and described treatment that she had found useful in the past.
17 why it is, what your
18 reasons are for not wanting the medication that's being
20 A Well, number one, the medication does not allow me
21 control over my choices and my life. The medication takes
22 away my reasoning ability, it takes away my ability to see
23 danger signals, it tranquilizes me, it opens a door to
24 what I expressed to you earlier, horrific effects that I
25 find distressing.
Here, Ms. Myers very cogently describes rational reasons for not wanting to take the medications.
In reviewing Ms. Myers' testimony as set forth above, which was corroborated by Dr. Smith's testimony it is clear the court overlooked and/or misconceived material facts. With respect to the court's conclusion that Ms. Myers does not acknowledge that she has mental illness, the court is elevating form over substance to an incredible degree. In essence the court is saying that the Respondent has to recite the magic words, "I am mentally ill" to pass this test. This misapplies the law. Ms. Myers clearly recognizes that she has a mental illness, albeit she says it in her own way and because of the standoff with API will not say the magic words demanded by API (and heretofore by the court).
The court also misapplied the law by misallocating the burden of proof when it found at page 18 of the 90-Day Order that "reason to suspect" is sufficient to support a finding that she is irrational by clear and convincing evidence.
The court's conclusion that Ms. Myers won't accept any helpful mental health treatment clearly misconceives her testimony. Similarly, the court misconceives material facts when it says that Ms. Myers doesn't acknowledge that she benefited from medications in the past. She also clearly articulated how the newer medications created huge problems for her. Problems that Dr. Smith testified to as being plausible, i.e., consistent with known problems with the drugs (combined with other complaints that are not). In light of all the problems with the medications that Ms. Myers has learned about, including through personal experience, and particularly the concern about tardive dyskinesia that prompted the change from Navane in the first place, it is entirely rational for her to also refuse to take the Navane, even though she feels it had some benefit in the past. The risks of harm are so great that it is entirely rational -- even to the point of resisting the intense coercion represented by her confinement at API, the punishment API is meting out for her exercising this right, and the constant pressure by API staff to get her to agree to take the medications through these and other measures.
Respondent respectfully suggests that unless corrected by this court now as a result of this motion for reconsideration an objective look at the testimony results in a firm conviction that a mistake has been made in the court's finding that by clear and convincing evidence Ms. Myers lacks the capacity to give informed consent to refuse the medication. It is not even close.
A motion for reconsideration is a procedural safety valve to allow the court to reflect on its decision(s) and correct errors at the trial court level. This proceeding and the court's decision was necessarily hurried and was hampered by the court's inability heretofore to examine the transcript regarding what was actually testified to. In addition, it is clear that the court relied almost exclusively on the testimony of the state's witnesses while rejecting out of hand the testimony of Respondent's witnesses. It is not surprising that the court would not sua sponte uncover the pervasive pattern of dishonest testimony because it takes the careful analysis of this testimony that has occurred here to reveal it. In addition, the court did not have the benefit of noted scholar, Professor Perlin's research that reveals such a pattern of dishonesty is endemic to this area of the administration of justice.
This court can not allow itself to be a participant in such a travesty of justice and must grant reconsideration of its 90-Day Order, vacate it, and order that within 24 hours Ms. Myers be discharged to at least as safe an environment as she was in when she was brought in for evaluation.
Law Offices of James B. Gottstein
James B. Gottstein
Counsel certifies that he hand delivered a copy of this pleading to Jeff Killip this same date.
 Attached to the Respondent's Motion In Limine.
 The court's finding that Ms. Myers is incompetent to refuse the medication is an example of the court setting an impossibly high standard and impermissibly shifting the burden to her.
 Unfortunately, it is quite common for state hospitals to fail to provide adequate treatment:
The record of state hospital staffs in the provision of adequate treatment to institutionalized patients historically has been a national scandal. Many of the legislative solutions that would "widen the net" and expand the civil commitment power assume, sub silentio, the availability of adequate treatment in public inpatient facilities. This assumption is utterly belied by the hospitals' track record over the past several decades, a record that demonstrates, in many instances, that hospitalization caused harm or retarded recovery. [footnotes omitted]
(emphasis added) Competency, Deinstitutionalization, and Homelessness: A Story of Marginalization, 28 Hous. L. Rev. 63 (1991) at 125-6.
 Page 4 of admitted Exhibit S.
 Page 8 of admitted Exhibit S.
 Page 10 of admitted Exhibit S.
 That Respondent exercised her right to appeal is a totally improper reason to continue to confine her.
 Page 12 of admitted Exhibit S.
 Page 14 of admitted Exhibit S.
 Dr. Hanowell testified that this didn't mean the previous problem resolved status remained.
 Page 16 of admitted Exhibit S.
 Mr. Laird's testimony comes nowhere close to stating that Ms. Myers attempted to inflict serious bodily harm. The unrebutted testimony is that Ms. Myers (misguidedly in the court's and other's view no doubt) was trying to block Mr. Laird from entering the women's area to protect hers and the other women's privacy. Ms. Myers testified that she and the other women were upset about male staff coming in and observing them during such times as when they were on the toilet and had voted to try and prevent such violations of privacy. At page 6 of the 90-Day Order the court stated Mr. Laird testified that Ms. Myers "swung her hand in an upward motion in front of his face" and that "Ms. Myers testified that her gesture was like a karate chop." Counsel's recollection is that Ms. Myers testified she does not believe she swung her arm in an upward motion, so to the extent the court's recitation of Ms. Myers testimony on this point suggests otherwise, counsel believes it is in error. The court made a similar error during the March 5th hearing. During that hearing, counsel for Respondent queried Dr. Hanowell about Ms. Myers' propensity to get very angry and even threatening, but always stopping short of violence and his testimony about an incident where that happened. Dr. Hanowell denied he testified to that and the court agreed:
0098 . . .
15 Q Okay. Now, I think you testified that at one point
16 Ms. Myers got -- clinched her fists and came forward and
17 then controlled herself before she actually did anything.
18 Is that correct? To you?
19 A Again, I wasn't present to witness that, but --
20 Q No, no. I'm talking about with you. Did you say
21 that --
22 MR. KILLIP: Your Honor, I would object. I don't
23 think that was a fair characterization of his prior
24 testimony, but certainly he can elaborate.
25 THE COURT: My understanding is the same as Mr.
1 Killip's. I thought that that incident took place in
2 front of a nursing staff member. Is that correct?
3 A Yes, Your Honor.
4 MR. GOTTSTEIN: But I think Dr. Hanowell testified
5 to something similar that happened to him where she got
6 very angry and approached him and then -- then stopped
8 THE COURT: Did you, sir?
9 A No sir. Not to my recollection, sir.
However, Dr. Hanowell had indeed testified on direct, essentially in the way characterized by counsel for Respondent:
0074 . . .
13 A She did become rather angry, briefly, to the point
14 of -- just almost to the point of belligerence, but then
15 that -- she was able to deescalate from there.
It should perhaps be noted here that even Ms. Myers' daughter testified to exactly the same thing:
12 and she was like jumping, and she kind of, like, started
13 to move towards me, but she stopped.
 A fax copy is attached hereto as Exhibit 2 and the original will be filed as soon as it is available.
 Since Mr. Jenkins' testimony was not available at the 90-Day Hearing, Respondent has alternatively moved for relief from judgment under Civil Rule 60(b)(6). Since this is being filed within the time for reconsideration, it could also be considered that moving for a new trial or to amend the judgment under Civil Rule 59 is the appropriate way to proceed and Respondent hereby does so to the extent the court deems it necessary. However, under the circumstances, it seems reasonable to roll this critical new evidence into the motion for reconsideration. However, in presenting it this way, Respondent is not waiving her right to move for a new trial or amend the judgment under Civil Rule 59 on this issue in the event reconsideration is not granted and the 90-Day Order on commitment is not vacated.
 The court's statement "Oh that Supreme Court" when Mr. Engel mentioned this point in closing makes clear that the court did not merely overlook or fail to consider this controlling authority, but instead chose not to follow it, i.e., misapply controlling law. While in some cases United States Supreme Court decisions may not be controlling where, as here, federal constitutional rights are involved, the United States Supreme Court's decisions certainly are.
 Another example pertaining to grave disability is the allegation that Ms. Myers was not eating properly. The only evidence counsel recalls about this was the allegation that she was giving away food or feeding it to the "critters" and that there wasn't sufficient food in her apartment. However, the hospital's record shows that Ms. Myers weighed 162 pounds at admission which, if anything is somewhat overweight for her height. It is, at a minimum, disingenuous for the state to cite failure to eat as an example of grave disability under these circumstances and demonstrates again the state's witnesses' unreliability.
 Dr. Smith's written testimony on this point is:
Does she lack the capacity to give informed consent regarding the administration of psychotropic medication? No. Ms. Myers is quite intelligent and capable of discussing rationally the risks, benefits, and effects of medications. She states that she took Navane for many years with some benefit. She noted that when she would go below a certain dose she would have trouble thinking and would sometimes hallucinate. She also describes plausible adverse effects of medications she has taken. For example, she states that medications that she took for whiplash made her feel sick. She states that Zyprexa made her feel lethargic, and the effect increased with increased dose. She claimed to feel no effect from Paxil, good or bad. Risperdal made her sick, caused memory problems, disorientation, and sexual feelings that disturbed her. Alongside rational thoughts about medications are some irrational or less rational ones. For example, she says risperdone caused a hole in her brain, which seems to have some delusional (concrete) thinking behind it. Nonetheless, when questioned further, she is able to elaborate in ways that are quite rational. To put it another way, the issue of medication is highly charged with emotion for her now, emotions she has great difficulty containing. She is strongly motivated to dramatize her reactions to medications as a way of expressing rage at her doctors and fortifying her resistance to them. But she is capable of thinking about and discussing medications in a much more rational way when discussed outside of their relational context. It is worth noting that part of reason for refusing medications is that at this point it would be humiliating for her. She finds it important to refuse medications as a way of preserving her dignity. She states that one of the main reasons she has consented to medications in the past is that her providers insisted on it. She recalls fondly a nurse years ago who pulled her aside and told her “just take the medications. It’s not worth the fight to refuse taking them.” She found that providers would treat her nicer when she took medicines and would “harass” her when she did not. She also fears that the doctors will not be sensitive or responsive to adverse medication effects. She tearfully recalled consenting to a trial of Zyprexa because she made a deal with her son. He begged her to take medications and told her she would never be able to be with her grandchildren again if she did not. She negotiated with her doctor that she would try it if he agreed to stop the medicine if it made her physically uncomfortable. She states that it made her “very lethargic” but when she told her doctor, he refused to stop it, and in fact increased the dose and said she was being uncooperative. She felt betrayed by the doctor and frightened of trusting him further. “He is not sensitive to me or to what the medication is doing to me.” She used to not find it worth it to fight her doctors about medications, but now she feels like she has nothing more to lose since she is alienated from her children and grandchildren. In discussing this, she seemed affectively genuine. She was quite rational and sincere. Medication refusal is nothing new to this patient. She has been reluctant or outright refusing of psychotropic medications over long periods of time when her competence was less in question.
 Dr. Smith's written testimony on this point is:
Does she appreciate that she has a mental disorder or impairment? Yes, although she would not put it that way. Because of her adversarial standoff with her treatment providers and family she refuses to acknowledge having a mental disorder. However she does in her own way acknowledge having problems and needing help, and benefiting from previous treatments. She speaks of herself as “stressed,” extremely so at times. She speaks of “having trouble coping.” Although she denies having hallucinations now, she states that she clearly has had hallucinations at times in the past. She acknowledged that she may not have used good judgment in a recent incident involving a moose. She also appreciates that she has benefited from treatments: Navane helped at least for a while. She found CTC to be very helpful. She also found psychotherapy with Dr. Braddock to be very helpful. Specifically, she said it help her develop some of the social skills her parents never taught her, including how to deal with men that seem to be making sexual advances to her.
 For example, Dr. Smith's written testimony includes the following:
It is interesting to note that she became less odd and less psychotic as our interview progressed. Her initial fear of me seemed to dissipate. By the end of the 75 minutes she was interacting with me quite appropriately and collaboratively and was able to tolerate me challenging her on some affectively charged subjects (her involvement with police and her sexual feelings). . . .
There are some very good prognostic signs that she will be able to form and respond well to a therapeutic relationship when the current adversarial stand-off is resolved, including her ability to collaborate with me, and her history of an ability to form a therapeutic alliance with others.
 The court cited to and relied on Ms. Myers' March 5th testimony in its 90-Day Order and Respondent does so here as well. Emphasis is supplied.
 Page numbers to the transcript are referenced at the beginning of each excerpt of the transcript and sometimes in the middle when the excerpt spans multiple pages.
 It should perhaps be noted here that Dr. Smith's testimony was that Ms. Myers' descriptions of the problems she had with the drugs were "plausible" meaning that it was consistent with known problems with the drugs.
 It is perhaps worthy of noting here that API's and essentially the court's ridiculing Ms. Myers' for believing she was under observation is unfair. Remember that Ms. Myers was minding her own business, cooking at home when the police knocked on her door, entered against her wishes, justified this because they had reports of her being mentally ill and a danger to others and this court had ordered her picked up and probably broke her finger while handcuffing her and hauling her in. Clearly, Ms. Myers was under observation (by her disapproving children). Even if Ms. Myers had the beliefs about being under observation in ways that do not comport with reality that the state's unreliable witnesses testified to, the essence of the belief -- that she was under observation -- are undeniably true. Rather than discuss these things in the way that Dr. Smith did so that she was able to accept him challenging some of these beliefs and acknowledging that they might be mistaken, API insists on an adversary relationship that increases distrust and more firmly sets the problematic beliefs.
 In addition, in his written testimony, Dr. Smith reports, " She states that she took Navane for many years with some benefit."
 Alongside rational thoughts about medications are some irrational or less rational ones. For example, she says risperdone caused a hole in her brain, which seems to have some delusional (concrete) thinking behind it. Nonetheless, when questioned further, she is able to elaborate in ways that are quite rational. To put it another way, the issue of medication is highly charged with emotion for her now, emotions she has great difficulty containing. She is strongly motivated to dramatize her reactions to medications as a way of expressing rage at her doctors and fortifying her resistance to them. But she is capable of thinking about and discussing medications in a much more rational way when discussed outside of their relational context.
Written testimony of Dr. Smith.
 In the recent case of Martin v. Taft, 222 F.Supp.2d 940, 965 (S.D. Ohio 2002), the court referred to Prof. Perlin as a "noted scholar."