Law Offices of James B. Gottstein

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Attorney for Faith J. Myers, Respondent

 

IN THE SUPERIOR COURT FOR THE STATE OF ALASKA

THIRD JUDICIAL DISTRICT, AT ANCHORAGE

In The Matter of the Hospitalization       )

                                                            )

                                                of         )

                                                            )

FAITH J. MYERS                               )          

                                                            )           Case No. 3AN 03-277 P/S

 

REPLY Re: STAY

 

            Respondent hereby replies to the State's opposition to Respondent's motion to Delay Effectiveness of Any Forced Medication Order to Allow Time to File a Petition for Review[1] and to Seek a Stay.

The State first objects in paragraph numbered 1, that the motion is not ripe, citing Brause v. Alaska State HSS, 21 P.3d 357 (Alaska 2001).  Respondent respectfully suggests that Brause is inapposite.  Brause merely states that there needs to be a live issue.  In this case, because the State no doubt intends to medicate Respondent immediately upon the issuance of a forced medication order, the only way for Respondent to have a meaningful opportunity to seek a stay is to do so in the way that she has.

The State next objects in paragraph numbered 2, to Respondent's characterization of the evidence;[2] that whether the medications the state wishes to force upon Respondent might be harmful to her was not before the court; and that the State's expert witnesses testimony should be credited while Respondent's should not because they disagreed with the scientific basis for the state's witnesses' opinions.  Respondent acknowledges that the Court seems to have agreed with the state that whether the proposed treatment is harmful to Respondent is not before the court, but as will be explored more below, Respondent strenuously disagrees with this conclusion.  Similarly, the issue of how to evaluate the testimony will be discussed in connection with the state's next point.

In the State's paragraph numbered 3, it asserts that the State need not comply with Daubert, Kumho Tire and Coon, citing LCH v. TS, 28 P.3d 915 (Alaska 2001), and reiterates its objection to the court considering that the proposed course of treatment may be harmful to Respondent.  Respondent disagrees that LCH decides the issue against Respondent because as footnote 26 therein states the exact reach of Coon has not been decided for these kinds of cases.  Respondent also directly challenges that the harmfulness of the proposed treatment is not a consideration.  Frankly, Respondent finds it absurd for the State to argue that the only remedy Respondent has is to bring a separate action against the "medical establishment."  The State is trying to get this court to order her in this case to be made to take medication that she knows from experience and for which there is expert testimony may be very harmful to her.  As asserted previously by Respondent, she respectfully suggests that the State must prove with scientifically valid evidence that the proposed treatment is both efficacious and safe before it may constitutionally override Respondent's wishes.  The litany of harmful psychiatric treatments that were accepted by the psychiatric establishment over time reads like a horror story.  As Robert Whitaker, the award winning science writer, states in the very last sentence (p. 290) of Mad in America: Bad Science, Bad Medicine and the Enduring Mistreatment of the Mentally ill:

In fact, if the past is any guide to the future, today we can be certain of only one thing.  The day will come when people will look back at our current medicines for schizophrenia and the stories we tell to patients about their abnormal brain chemistry, and they will shake their heads in utter disbelief.

The issue is before the court in this case.

In numbered paragraph 4, the State opposes "any further delay in the administration of psychotropic medications."  Respondent respectfully suggests this confirms Respondent's statement that there is not another way for Respondent to have a meaningful opportunity to seek a stay, than filing it in advance the way she did.  Respondent also notes that the State has not presented any scientific valid evidence to support its assertion that "continued delay in the administration of medication would make recovery more difficult."[3]

 

            RESPECTFULLY SUBMITTED this 14th day of March, 2003.

 

                                                            Law Offices of James B. Gottstein

 

 

 

                                                            By:                                                                              

                                                                        James B. Gottstein

                                                                        ABA # 7811100


[1] As noted previously, the proper appellate avenue is probably through an appeal rather than a petition for review.

[2] Respondent notes that she requested the log notes and a copy of the recording of the hearing a week ago in order to have a transcript prepared and as of this writing, they have not been made available.

[3] Respondent also notes that if, as Dr. Mosher testified was the proper course, the hospital was truly "committed to working 'in partnership' with Respondent" it would not be seeking to administer medication against her wishes.  When the Doctor seeks the right to administer medications against a patient's will, there is no commitment for working in partnership.