Law Offices of James B. Gottstein

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Attorney for Faith J. Myers, Respondent




In The Matter of the Hospitalization                       )


                                                of                                )


FAITH J. MYERS                                                      )

                                                                                    )           Case No. 3AN 03-277 PR




Respondent opposes the motion for expedited consideration of the state's Motion to Vacate Stay on Medication Orders (Motion). 

In its Motion, the state is asserting the truth of exactly the same things it steadfastly argued should not be addressed by the court and which the court accepted, to wit: the safety and efficacy of the proposed medication.  For example on page 6 of the motion, the state asserts that the medications have "previously proven to be effective - to treat schizophrenia."  Similarly on page 3, the state says that "Ms. Myers needs the benefit of the medication immediately."  At the March 5th hearing, the state successfully argued that these issues should not be allowed to be testified to, which this court agreed with:

18         MR. KILLIP:  Your Honor, again I would object,

19   standard objection.  We're not challenging the practice of

20   medicine, here.  If he has a specific concern about how

21   API is practicing medicine, then he has an opportunity to

22   file a complaint, allege a cause of action and pursue

23   that.  But we have two petitions before the court today,

24   and the only issues are criteria for commitment and the

25   criteria for administration of psychotropic medications. 


 1   Have they been met?  So we would object to the relevance.

 2         THE COURT:  The line of questioning that I want you

 3   to pursue, that I've given you permission to pursue right

 4   now, is qualifications of this witness as to psychotropic

 5   medication.

 6         MR. GOTTSTEIN:  Psychopharmacology.  That's exactly

 7   what I'm intending to do.

 8         THE COURT:  All right.

 9         MR. GOTTSTEIN:  I asked a question about certain

10   medications.

11         THE COURT:  Actually, you asked his opinion about

12   the efficacy of the medications, I think.  And I want you

13   to just focus on his qualifications, please.

14         MR. GOTTSTEIN:  Well, it seems to me, Your Honor,

15   that knowledge about the efficacy is part of his

16   qualifications.

17         THE COURT:  I don't agree.  I'm not going to allow

18   him to answer this question.

While opposing addressing the safety and efficacy of the proposed medication at the original hearing, the state now wants to do it through the back door in an expedited manner with the result being that Respondent won't have an opportunity to meaningfully oppose it.  The truth of the matter is, contrary to the state's position, "The overall usefulness of [neuroleptics] in the treatment of schizophrenia . . . is far from established."[1]  (emphasis added)  What is known is that these drugs are extremely toxic.  Id., passim. 

What the state and her family characterize as improvement is really chemical subduing and does little or nothing to help her recover from schizophrenia:

NLPs [neuroleptics] frequently exert a tranquillizing and subduing action on persons episodically manifesting agitated, aggressive, or disturbed behavior.  This unique capacity to swiftly dampen patients' emotional reactivity should once and for all be recognized to account for NLPs' impact on acute psychosis.  Yet, only a modestly critical look at the evidence on short term response to NLPs will suggest that this often does not produce abatement of psychosis.  And in the long-run, this outstanding NLP effect probably does little to help persons diagnosed with schizophrenia remain stable enough to be rated as "improved" -- whereas it is amply sufficient to produce disabling toxicity.

Id, at 213.

Expedited consideration works an unfair and extreme prejudice on Respondent in her ability to rebut the testimony of the state's psychiatrist, which this court has uncritically accepted in the past, and expedited consideration should be denied because of this prejudice.[2]

The motion for expedited consideration was served at the end of the business day on Friday, April 25th.  Respondent has asked for an update to her chart, but as it was the weekend it was not available until this morning and could not be reviewed prior to the deadline for this opposition. (See, Exhibit 1)  Respondent is entitled to a fair opportunity to rebut the allegations of the state.  Respondent understands that the court has a tendency to automatically rely upon the testimony of the state's witnesses.  However, this reliance is misplaced:

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.

The ADA and Persons with Mental Disabilities:  Can Sanist Attitudes Be Undone? by Michael L. Perlin, Journal of Law and Health, 1993/1994, 8 J.L. & Health 15, 33-34.[3]

It is highly likely that Dr. Hanowell's affidavit mischaracterizes or exaggerates Ms. Myers' behavior as violent in order to obtain the court order the state is seeking and Ms. Myers is entitled to a meaningful opportunity to rebut this.  Expedited consideration will not give her such a meaningful opportunity.

In addition, following the April 19th Order, investigation reveals that the state's testimony as set forth in page 9 of the Order: "Drs. Kletti and Hanowell testified that Crisis Treatment Center will not accept Ms. Myers as a patient unless she agrees to take psychotropic medication" is not a true statement.  Respondent is working on bringing the information about this critical testimony being untrue properly before the court within the time frame allowed for filing reconsideration.  This potential opportunity for Ms. Myers to be placed in an appropriate less restrictive setting where her desire not to be forcibly medicated will be honored and a therapeutic relationship can therefore be possible is another reason to deny expedited consideration of the state's motion to lift the stay against the forced medication orders.

For the foregoing reasons, Respondent adamantly opposes expedited consideration of the state's Motion to Vacate Stay on Medication Orders and urges the court to deny it.

            DATED:  April 28, 2003.


                                                            Law Offices of James B. Gottstein





                                                                    James B. Gottstein

                                                                     ABA # 7811100


Counsel certifies that a copy of the foregoing was served on Jeff Killip this same date.




[1] "A Critique of the Use of Neuroleptic Drugs," which is attached to the deposition of Dr. Hanowell, at page 195.

[2] The real problem as explained by Dr. Smith and admitted to by the state, which was overlooked by the court in issuing its April 19, 2003 Order is that the hospital is not providing the type of non-medication treatment that is likely to benefit her.

[3] Respondent respectfully suggests that this is exactly what has happened here and intends to file a motion for reconsideration of the April 19th Order within the time allowed in order to draw the court's attention to things it has overlooked and where it has misapplied the law.