PsychRights®
Law Project for
Psychiatric Rights
Alaska
Case Seven -- Forced Drugging of Bill Bigley,
Respondent,
One
Drug, Two Faces, New York Times, March 25, 2008
Superior Court Case No. 3AN 07-1064 P/S
Supreme Court Case No. S-13015
Superior Court Case No. 3AN 08-00247 P/R
Superior Court Case No. 3AN 08-00493
Supreme Court Case No. S-13116
Superior Court Case No. 3AN 07-1064 P/S
Note: Most of the links don't work because the Probate Master, improperly in PsychRights' view, closed the file from public access even though Mr. Bigley elected to have the hearing open to the public as is his right. This is on appeal. However, the motions and order regarding the closure of the file are public:
This decision has been appealed because the right of involuntary commitment and forced drugging respondents to have their proceedings open to the public is an important right.
Mr. Bigley's History
Prior to 1980, Mr. Bigley, an Alaskan Native, was successful in the community, he had long-term employment in a good job, was married and had two daughters. In 1980, Mr. Bigley's wife divorced him, took his two daughters and saddled him with high child support and house payments, resulting in his first hospitalization at the Alaska Psychiatric Institute (API). When asked at the time what the problem was Mr. Bigley said "he had just gotten divorced and consequently had a nervous breakdown." He was cooperative with staff throughout that first admission.
At discharge, his treating psychiatrist indicated that his prognosis was "somewhat guarded depending upon the type of follow- up treatment patient will receive in dealing with his recent divorce." Instead of giving him help in dealing with his recent divorce and other problems, the system's approach was to lock him up and force him to take drugs that, for him at least, do not work, are intolerable, and have harmful mental and physical effects.
This pattern was set by his third admission to API: As is often the case, the medication did not have noticeable favorable effects throughout the first several hospital weeks and there were a variety of unpleasant Extra Pyramidal Symptoms (EPS). On 3/26/81 a judicial hearing determined that there would be granted a 30 day extension during which time treatment efforts would continue, following which there would be a further hearing concerning the possibility of judicial commitment. Mr. Bigley was furiously angry that he was deprived of his right to freedom outside the hospital, but despite his persistent anger and occasional verbal threats, he never became physically assaultive, nor did he abuse limited privileges away from the locked unit.
Twenty seven years and over 70 admissions later API has continued to lock him up to forcibly drug him and then release him into the community, knowing full well he will quit them. Even after the maximum drugging, API describes Mr. Bigley's condition as "delusional" with "no insight and poor judgment, . . . paranoid and guarded."
In 2004, API petitioned for Mr. Bigley to have a full guardianship appointed, which was granted and the Alaska Office of Public Advocacy (OPA) appointed as his full guardian. At that point, virtually all of Mr. Bigley's legal right to decide anything for himself was taken away from. He's livid about this, of course.
In spite of this 27 years of failure over 70 admissions, API's psychiatrist testified in the April, 2007 public jury trial, that the plan is by repeatedly obtaining forced drugging orders Mr. Bigley will be trained to stay on his medication when discharged.
While Mr. Bigley usually "submits" when 3 or 4 staff members come at him with a needle, on those occasions when he doesn't, he is physically held down and the drugs injected into him. Mr. Bigley is quite naturally livid about all of this happening to him.
It is quite clear that Mr. Bigley's ongoing psychiatric difficulties are the result of what the mental health system has done to him. The drugs do not "work" for a high percentage of people and Mr. Bigley is certainly one of them. Instead of addressing his problems in ways that are known to be effective, API has continued to force Mr. Bigley to endure interventions that have quite properly been characterized as torture.
PsychRights Begins Representing Mr. Bigley
PsychRights began representing Mr. Bigley on December 6, 2007. It was looking for an appropriate vehicle to subpoena what have become known as the Zyprexa Papers, and advance other strategic litigation objectives that might be possible through representing him. Of course, once representing him, as his attorney, PsychRights was obligated to do so vigorously with respect to any and all other interests he might have in the case(s) in which he was represented by PsychRights. Initially, PsychRights thought OPA had been consenting to Mr. Bigley's forced drugging4 and as an alternative to termination of the guardianship if termination was not granted, petitioned to eliminate the guardian's right to consent to Mr. Bigley being given these drugs against his will.
Since then, PsychRights has also represented Mr. Bigley in three forced drugging proceedings, this one being the latest, as well as continuing to represent him in trying to get out from under his guardianship. In the first one, API just let him go after PsychRights got into the case and demanded a jury trial. In the second one, Mr. Bigley won a jury trial on involuntary commitment and he was let go. Mr. Bigley also won another jury trial on involuntary commitment in which another part of OPA represented him and Jim Gottstein testified on his behalf as a fact witness.
Proceedings in This Case: Through the Looking Glass
The current case started on August 30, 2007, when involuntary commitment and forced drugging petitions were both filed, and a hearing set for the next day on both of them. (Since this was a new petition for a 30-day commitment, Mr. Bigley did not have the right to a jury trial.) Filing the forced drugging petition at the same time as the involuntary commitment and having a hearing on both at the same time, is contrary to both the Myers 1 and Wetherhorn 2 decisions by the Alaska Supreme Court, which held that a petition for forced drugging should only be filed and heard after commitment has been ordered and, unlike commitment, there should be no particular hurry.
The next morning, August 31st, PsychRights filed pleadings, including that PsychRights was Mr. Bigley's attorney only as to the forced drugging petition and objecting to various aspects of the proceedings. Thus, at the hearing that afternoon, the Public Defender Agency represented Mr. Bigley in the involuntary commitment proceeding, which went first. At the beginning of that hearing, while represented by the Public Defender Agency, Mr. Bigley elected to have the hearing open to the public as is his right under AS 47.30.735(b)(3).
API's psychiatrist testified that while Mr. Bigley can be very loud and an extreme pest, he isn't violent. Since Mr. Bigley especially has problems when he loses his housing and his being kicked out of the homeless shelter precipitated the current hospitalization, API's psychiatrist was asked if Mr. Bigley could just stay at API when he needed/wanted to. API's psychiatrist replied, no, API is not a dormitory or boarding house. API's psychiatrist testified that Mr. Bigley was "gravely disabled" because he hadn't been eating enough, he yells at people, making threats he won't carry out and someone assault him as a result. The Probate Master indicated he was recommending commitment based on Mr. Bigley being gravely disabled because he had lost weight, starving himself, lost numerous housing situations, was homeless and jeopardizes his well-being.
Then the Probate Master turned to the forced drugging petition in which Mr. Bigley was being represented by PsychRights3
One of PsychRights objections was that Mr. Bigley was at least entitled to notice of the factual basis of API's claim that forcibly drugging Mr. Bigley is in his best interests. Under Myers, in determining best interests, the court was required to consider:
(A) an explanation of the patient's diagnosis and prognosis, or their predominant symptoms, with and without the medication;
(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;
(C) a review of the patient's history, including medication history and previous side effects from medication;
(D) an explanation of interactions with other drugs, including over-the-counter drugs, street drugs, and alcohol; and
(E) information about alternative treatments and their risks, side effects, and benefits, including the risks of nontreatment,
API responded that Mr. Bigley should know to what the psychiatrist was going to testify. The Probate Master went along with API.
PsychRights said it wasn't prepared to go forward that day, less than 24 hours after the petition was filed and requested a short delay. API strenuously objected, saying that it needed to be able to drug Mr. Bigley because he was so disruptive. This was in spite of API's psychiatrist just having testified that Mr. Bigley didn't act on his threats and as a professional Mr. Bigley's behavior didn't concern him. The Probate Master granted a short continuance until Wednesday, September 5th. In order to mollify the hospital, the Probate Master, who is delegated the responsibility of hearing the evidence and making recommendations to the trial court, said that in an emergency, the hospital could use the police power justification contained in AS 47.30.838.
On Tuesday, September 4th PsychRights filed the following pre-hearing papers:
The Pre-Hearing Brief went into a number of matters and all of the above supporting documents were discussed. For example, the reason for the subpoenas is that these were the drugs that Mr. Bigley had been forcibly drugged with in the recent past and the drug manufacturers had suppressed the studies where the results weren't what the manufacturers wanted, and under Myers the courts can not possible be able to properly conclude forcing them on Mr. Bigley is in his best interest without having access to these secret studies. The Bassman and Whitaker pre-filed testimony goes directly to Myers factors.
At the beginning of the September 5th hearing, API moved to strike most of the materials filed on behalf of Mr. Bigley. Then, after some procedural skirmishing, API's psychiatrist testified as to why Mr. Bigley should be forcibly drugged and that there was no less intrusive alternative. He also testified that if he wasn't taken to API when things deteriorated, Mr. Bigley would end up in jail. In other words, API's psychiatrist refused to consider anything other than forced drugging for Mr. Bigley at API. PsychRights asked to take a visiting expert on less intrusive alternatives from New Zealand, Sarah Porter, before cross-examining API's psychiatrist because time was running out for the day and she was going to be unavailable after the end of the week. This was allowed and Ms. Porter testified about how people experience much better outcomes if they are not forced and their problems are addressed through negotiation instead. The hearing was then continued until September 10th.
On September 6th Jim Gottstein mentioned to the clerk that the file was open to the public and the next day, the Probate Master issued an order that while the hearing might have been open, the file was closed. PsychRights asked for reconsideration of this, which was denied. This is an outrageous decision in PsychRights' view because it is Mr. Bigley's right to have the file open to the public. The only reason to close it is if he wants to keep it private to protect his reputation. This is not a factor for Mr. Bigley and he wants the world to know what API has been doing to him. It is hardly imaginable that Mr. Bigley can't post his own pleadings on the Internet, but because Jim Gottstein has been threatened with financially ruinous civil contempt charges in the Zyprexa Papers Case in the Brooklyn Federal Court involving when he subpoenaed the Zyprexa Papers for Mr. Bigley's guardianship case, as well as criminal contempt charges and a move against his license to practice law for disseminating documents he still believe had lost all confidential status the documents have been removed from the Internet until the issue is favorably resolved. Therefore, many of the above links don't currently work.
It then turned out that in spite of there being no order authorizing forced drugging and there being no emergency(ies) under AS 47.30.838, Mr. Bigley continued to be forcibly drugged as if there was authorization to do so. Therefore, on Monday, September 10, 2007, PsychRights filed for emergency relief from the Alaska Supreme Court if the forced drugging had not been stopped by 4:00 pm.
These were e-mailed to API the night before, so that it would have as much notice as possible. After the Original Application for Relief and Emergency Motion for Injunctive Relief were filed first thing Monday morning, September 10, 2007, API was ordered by the Alaska Supreme Court to respond by 3:00 pm that afternoon. API quit the forced drugging, and at the September 10, 2007 hearing, notified the Court and essentially decided to drop the forced drugging petition and discharge Mr. Bigley in a couple of days.6
Because just discharging Mr. Bigley without sufficient forms of support was very likely to land Mr. Bigley in jail, on September 12, 2007, PsychRights moved for a permanent injunction that:
1. Mr. Bigley be allowed to come and go from API as he wishes, including being given, food, good sleeping conditions, laundry and toiletry items.
2. If involuntarily in a treatment facility in the future, Mr. Bigley be allowed out on passes at least once each day for four hours with escort by staff members who like him, or some other party willing and able to do so.
3. Only the Medical Director of API may authorize the administration of psychotropic medication pursuant to AS 47.30.838 (or any other justification for involuntary administration of medication, other than under AS 47.30.839), after consultation with James B. Gottstein, Esq., or his successor.
4. API shall procure and pay for a reasonably nice two bedroom apartment that is available to Mr. Bigley should he choose it. API shall first attempt to negotiate an acceptable abode, and failing that procure it and make it available to Mr. Bigley.
5. At API's expense, make sufficient staff available to be with Mr. Bigley to enable him to be successful in the community.
6. The foregoing may be contracted for from an outpatient provider.
These were very carefully designed to take into account Mr. Bigley's situation and give him a reasonable chance of being successful in the community and was supported by the Affidavit of Paul Cornils, with CHOICES, Inc., a new program that just got going to provide the types of less intrusive alternatives the Alaska Supreme Court ordered in Myers. Among the reasons given for this injunction was:
Because it has determined not to continuing seeking court approval to forcibly drug Mr. Bigley, API currently plans to discharge Mr. Bigley into exactly the same situation which he has been, and which [API's Psychiatrist] testified is very likely to land Mr. Bigley in jail. API should not be allowed to do so. API should be ordered to provide the type of reasonably available community supports that can be provided him at reasonable cost, which he voluntarily accepts, to give him a real chance at success in the community.
However, before the motion was dealt with, on Friday, September 14, 2007, Mr. Bigley was discharged without sufficient supports.
On September 17th, the Probate Master ordered most of the pre-hearing supporting materials stricken, improperly removed them from the official court file, and returned them to PsychRights.
On September 19th Mr. Bigley was arrested by the Federal Protective Service and charged with (1) failure to comply with the lawful order of a Federal police officer and (2) (a) being loud and a nuisance, (b) obstructing the use of a federal office(s), and (c) impeding or disrupting federal employees . See, USA v. Bigley, 07-192. He was locked up in jail for weeks.
On September 25, 2007, a Motion to Open the Court File to Public Inspection was filed. Under Administrative Rule 37.7(b), this has to be available to the public, which is why it can be posted even though the file is still being kept secret by the Probate Master. On October 5, 2007,API filed an opposition to public access, on October 10, 2007, PsychRights filed a reply to that opposition, and on January 24, 2008, the Court denied the motion to open it up to the public.
On September 24, 2007, the Probate Master issued his recommendations, which, among other things termed the motion requiring the hospital to provide the less intrusive alternatives outlined above, frivolous, especially, the one for housing, and recommended I be fined $250 for filing it.
On September 28, 2007, Mr. Bigley submitted formal Offers of Proof, returning all the documents the Probate Master removed from the official court file and outlining their relevance (which had already been done).
On October 5, 2007, Mr. Bigley submitted a 56 page Objections to the Master's Report, re-asserting the right to the less intrusive alternatives requested. The hospital responded the the Objections to the Master's Report and the offers of proof on October 11, 2007.
On October 20, 2007, Mr. Bigley was picked up by the police for creating disturbances, held in jail for a few days and then sent to API on October 23, 2007. This was while I was out of town on an extended trip. He was assigned a public defender and a hearing held on November 2, 2007 (which I attended). The public defender called no witnesses and put on no evidence, even though I had given him the evidence I had used previously.
The trial court has not yet ruled on the less intrusive alternatives potion of the earlier case, Mr. Bigley still needs the sort of support in the community that will give him a reasonable chance to succeed. We can't appeal on the less intrusive alternative request until the trial court rules. There are also two other clean up items that need to be taken care of, which are to vindicate Mr. Bigley's right to have the file open to the public and to get the materials that were stricken back in the court file. The latter is also needed so the record can be complete for the anticipated appeal. If these aren't corrected at the trial court level, it is anticipated they will be included in the appeal.
A very disturbing aspect of the most recent commitment and forced drugging proceedings is that after the hospital caved on the previous forced drugging petition in the face of the overwhelming case against it presented by PsychRights, a new case was filed, held in front of the same judge, none of the evidence against the drugging was presented by his public defender, and a forced drugging order was issued against him in as usual.
As of this writing, Mr. Bigley is still locked up at API and being drugged against his will.
1In Myers, decided in June of 2006, the Alaska Supreme Court held that under the Alaska Constitution, people can't be forcibly drugged unless, in addition to the statutory requirement of incompetence, the court finds by clear and convincing evidence that (1) the forcible drugging is in the patient's best interests, and (2) there is no less intrusive alternative available.
2In Wetherhorn, decided in January of 2007, the Alaska Supreme Court held that people can't be involuntarily committed as "gravely disabled," unless gravely disabled is "construed to require a level of incapacity so substantial that the respondent cannot survive safely in freedom."
3There was and is a huge imbroglio over the status of representation, but that won't be described here.
4OPA has indicated it did not and does not do so, but PsychRights found an instance where Mr. Bigley's guardian did sign a consent to have Mr. Bigley psychiatrically drugged against his will.
5At the January 16-17, 2007, hearing in the Zyprexa Papers case in federal court in Brooklyn, Mr. Gottstein had not yet been allowed to review Mr. Bigley's medical records because the guardian took the position that Mr. Bigley could not consent to have his lawyer review his records in his case against his guardian; that only the guardian could consent. Also, the deposition Mr. Gottstein had set for December 11, 2006, to among other things, obtain the records, had been blocked by API and the guardian. Thus, at the Brooklyn hearing, Mr. Gottstein could not testify that Mr. Bigley had been forcibly drugged with Zyprexa. This was relied upon by the Brooklyn court in finding that the Mr. Bigley case was not a legitimate case in which to have subpoenaed the heretofore secret documents related to harms caused by Zyprexa. Since then, of course, as Mr. Gottstein had assumed, it has been determined that Mr. Bigley had been subjected to Zyprexa pursuant to a forced drugging order shortly before the subpoena. He has also been forcibly drugged with Zyprexa since January, 2007.
6Because API allowed this gross violation of Mr. Bigley's rights to take place, if not endorse it, suggests a pattern or practice of violating Mr. Bigley's federal civil rights, a letter was written to the United States Department of Justice requesting an investigation of API under the Civil Rights of Institutionalized Persons Act (CRIPA). The Department of Justice responded by letter dated October 23, 2007, which PsychRights will probably follow up on if a satisfactory resolution can not be negotiated with API.
USA v. Bigley 3:07-MJ-00192-JDR
Original Application for Relief in the Alaska Supreme Court. S-12851
Supreme Court Case
No. S13015
William S. Bigley v. Alaska Psychiatric
Inst.,
Superior Court Case No. 08-00247 PR
A story about this case was in the New York Times on March, 25, 2007: One Drug, Two Faces and the Wall Street Journal's Health Blog: Zyprexa: Balancing Serious Side Effects With Serious Illness. On February 26, 2008, new petitions for 30 Day Commitment and Forced Drugging were filed against Mr. Bigley with the Alaska Public Defender Agency automatically appointed to represent him in both the commitment and forced drugging proceedings, the hearings for which were set for February 29, 2008. However, Master Duggan recused himself and Master Lack was appointed and a hearing set for March 5, 2008. At the March 5, 2008, hearing, Mr. Bigley said he wanted Mr. Gottstein of PsychRights to represent him and a "representation hearing" was set for the next day, March 6, 2008, before Judge Mark Rindner, the Superior Court Judge who was assigned the case (these types of cases are uniformly "referred" to a probate master to hear evidence and make recommendations, but they are Superior Court cases and Superior Court Judges ultimately responsible for them). On March 6, 2008, PsychRights filed a Submission for Representation Hearing, including written testimony by Robert Whitaker, Ronald Bassman, PhD., and Paul Cornils, in which PsychRights indicated it would represent Mr. Bigley only with respect to the forced drugging petition which could only occur if and after Mr. Bigley was ordered committed under the "two-step" process the Alaska Supreme Court held was required in Myers and Wetherhorn. On March 10, 2008, PsychRights filed a Motion for Less Intrusive Alternative under Myers, which held people can not be forcibly drugged in the best interests if there is a less intrusive alternative. However, Judge Rindner, who was also hearing the Alaska v. Lilly case at the same time, recused himself at the March 6, 2008, hearing, and the case was assigned to Judge Peter Michalski, who was the judge in 3AN 07-1064PS. In Alaska, parties have the right to automatically have one change of judge if they exercise the right within five days of appointment and before the judge has made any rulings, and on March 7, 2008, PsychRights filed a Notice of Change of Judge and Judge Jack Smith was appointed. The representation hearing was held in front of Judge Smith on March 10, 2008, and he agreed that under Myers and Wetherhorn, the forced drugging petition was the second step of a two-step process and that PsychRights could represent Mr. Bigley if it should get to that point, but Mr. Gottstein should not be involved in the case or interfere with the Public Defender Agency's representation of Mr. Bigley in connection with the commitment petition, which was set for Friday, March 14, 2008. The judge indicated that he would treat PsychRights' filings as "lodged," rather than filed. That seemed workable, but that night the hospital injected Mr. Bigley with Haldol and Ativan, purportedly on an emergency basis under AS 47.30.838. However, AS 47.30.838 only allows such forced drugging to preserve life or prevent serious injury, and Mr. Bigley had even allegedly only been yelling and slamming doors. Mr. Gottstein drafted a motion for a temporary restraining order against future illegal use of the emergency justification, which he was happy to have the Public Defender Agency file, but failing to hear back, filed it at the end of the day on March 11, 2008. The court, however, returned the temporary restraining order motion package as well as the "lodged" documents, saying Mr. Gottstein was not a party and the documents could be refiled upon the determination of commitment and the filing of a new entry of appearance. The next day, March 12, 2008, PsychRights filed a new entry of appearance and a Renewed Motion for Temporary Restraining Order. With some involvement by the Public Defender Agency, the hospital agreed not to further forcibly drug Mr. Bigley on an "emergency" basis until after the commitment hearing that Friday, March 14, 2008, rendering the motion for Temporary Restraining Order Moot. The judge also returned the Renewed Motion for Temporary Restraining Order paperwork. The idea a judge can just remove filings from the official court file and return them is troubling, but in this case, it did no harm. This could be appealed, but probably won't. At the commitment hearing on Friday, March 14, 2008, in which Mr. Bigley was represented by the Public Defender Agency, the hospital's psychiatrist testified that there was no reason to hold Mr. Bigley if he couldn't be drugged. This implicitly acknowledged that the doctor was not truly concerned about Mr. Bigley's safety if he was let go, although he did testify he was concerned that someone would assault Mr. Bigley if he was let out in an undrugged state. Judge Smith noted that Mr. Bigley had been hospitalized over 70 times, was uniformly drugged in the hospital, released and quit taking his drugs only to be brought back to the hospital to repeat the cycle, and that there didn't seem to be any point in continuing to do that. He also noted that Mr. Bigley had won his last two jury trials on the basis that he was not gravely disabled (actually he won only one of them for that reason; he won the other on the ground that his mental condition would not be improved by the course of treatment), and found that Mr. Bigley was not gravely disabled. Mr. Bigley was then let go. Thus, the forced drugging petition never got heard. TranscriptsSuperior Court Case 3AN 08-00493 PR
Supreme Court Case No. S-13116
Last modified 7/17//2008
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