(Legal tactics and strategy) 11-12-2003 08:00


CRRP was formed with legal tactics and litigation strategies in mind. Although those who advocate ultimate psychiatric authority over all human institutions and endeavors have been quite successful in many ways, they have not yet entirely defeated constitutional and statutory civil rights safeguards. Their quest for total power can still be thwarted. The biggest problem is that very few people with any political or economic means have much incentive to notice or prevent the slow erosion of liberty under the slickly marketed -- and we have to say, utterly fraudulent -- banner of “encouraging treatment for mental illness.”

As Thomas Szasz pointed out long ago, medical treatment against the will of a patient is a morally incoherent concept, not to mention subversive of the most basic legal tenets of Western civilization. Forced drugging, shocking, restraint and imprisonment are not treatment. They are torture or punishment, or at best, isolation or exile. Psychiatrists have disputed this obvious and manifold social reality by suggesting that perhaps the brain should be considered as a hypothetical organ containing moral agency, which occasionally becomes diseased as all bodily organs do. Brain disease can therefore turn a person into an object to be manipulated rather than a responsible being to be consulted.

Such recasting of a fellow human being is consistent with an emotional need in anyone who greatly despises or fears another. Perhaps it is a substitute for murder, and born of similar motives. Although CRRP cannot yet validate any declared golden age in which no one will ever need to kill an enemy, we believe there is little benefit and much liability in a massive modern pretext.

State mental health codes consistently presume a need and a value in treating mentally ill people. They also presume that some of the mentally ill need and should value treatment even if they say otherwise themselves. Psychiatrists and their supporters have convinced legislatures that such “treatment” is similar to any traditional medical service, that moral-agency-disabling brain disease is present, and that cures are possible if not perfectly predictable. Despite the overwhelming resemblance of state psychiatric institutions to prisons, most people unthinkingly accept the benevolent term hospital.

In one such hospital in 2003, one such mentally ill person decided he did not want the treatment his psychiatrist was prescribing. What follows is a narrative (with names, etc., changed for reasons that need not be detailed) of various institutional and legal events which ensued from that decision. Neither the law involved nor the bureaucratic dynamics are exceptional in the universe of state institutions and state mental health codes, as far as this writer can tell. Thus, because this one refusenik was successful, the narrative may provide insight for others who would exercise or protect the right to refuse psychiatry.



Jose M. had been found not guilty by reason of insanity (NGRI) on a charge of aggravated battery of a police officer. He was remanded to the custody of the state’s Department of Mental Health and confined in a state mental health facility for forensic patients. Approximately five months prior to his Thiem date (the date on which his sentence would have been fully served if he had pled guilty to the crime, and the date when the Department of Mental Health would no longer have legal custody of him), he contacted an attorney associated with CRRP. At that time, his privileges had been severely restricted due to his refusal of medication for bipolar disorder.

Jose’s psychiatrist, Dr. Schwanz, was a young man who suffered no challenge to his authority, and had little tolerance for anyone, especially patients, who might question a “diagnosis” he made or his recommendations for treatment. Jose’s attorney had had confronted this particular psychiatrist before. Schwanz basically believed it was his job to diagnose everyone he saw with bipolar disorder, and to treat them with certain drugs whether they wanted them or not.

Once Jose had made it known that he would refuse meds, Dr. Schwanz had put the treatment team, consisting of himself, a psychologist, nurses, social workers, security therapy aides, etc., on high alert: Jose was mentally ill and untreated, therefore he could be expected to deteriorate and everyone should watch for the signs. The treatment team followed this directive, and their clinical judgment and observations marched nicely in step with their expectations. For example, Jose was noted to be hypergraphic – meaning simply that he wrote too much – meaning, quite literally, only that he wrote more since he stopped taking medication. This symptom of deterioration along with various others, all equally circular and subjective, was duly entered into Jose’s medical chart.

Because he was deteriorating, Jose had to have his privileges restricted. He wasn’t taking his meds, so he wasn’t trusted by the staff. No more going to the library, no more participating in group activities, etc. The only open door to restoration of privileges and favor, the only answer to Jose’s question, “How can I fix this situation?” and the only possible way to demonstrate stability, good behavior or mental health was, “Comply with treatment – take your meds!” Much effort was also put into “educating” Jose into adopting the attitude of his doctors, that the meds he was refusing were beneficial and necessary for the treatment of his mental illness which was, after all, causing all his problems and all his disagreements with such benevolent authority as exercised by Dr. Schwanz.

Jose nevertheless continued to refuse the meds, and also began to refuse demands of staff to discuss his decision endlessly. Dr. Schwanz became increasingly exasperated.

Recipients of mental health services from the state are allowed to designate any person to attend periodic meetings to help clarify their preferences regarding the provision of adequate and humane care and services in the least restrictive environment. The law actually stipulates that directors of state-operated facilities must inform recipients of this right, but they rarely, if ever, do so. Jose’s attorney friend was attending the relevant monthly staffings under this section of the law, providing too-obvious support for Jose’s anti-meds position and consistent reminders that, like it or not, Jose had a right specifically guaranteed under state law to refuse medication.

Less than two months prior to the date on which Jose would necessarily be released, an incident occurred. Jose was sick with stomach flu on a Saturday night, and woke up Sunday morning still feeling bad. He managed to get out of bed and leave the dorm on time, per the rules. However he told a security therapy aide (STA) that he did not want breakfast, and he returned to his room as soon as he was allowed. He was undressed and back in bed when the same STA, who knew he was sick, appeared at his door and ordered him to report to the nurse’s station for his medication.

Jose responded that he had not been taking meds for three months, and the nurse and STA both knew that very well. Although Jose was familiar with a specific regulation which demanded that any recipient refusing meds had to do so in person at the nurse’s station per the regular schedule, the rule had gone consistently unenforced in his case for at least ten weeks. But on this particular Sunday morning, when he was sick in bed, his captors were getting technical.

Jose told the STA he wasn’t getting up; the nurse could come to him if it was really necessary. That was unacceptable. The STA threatened to call security and lock him, as well as his roommates, out of the room for the rest of the day if he did not comply with her rule. It was Sunday, and Jose knew his roommates would be very unhappy to be locked out of the room. So he got out of his sick bed, got dressed and headed down the hall to the nurse’s station.

Not surprisingly, the nurse had not been expecting him. He arrived at the meds window and it was closed. He actually had to knock to get someone’s attention so he could officially report, per the suddenly-strict rule, that he was refusing meds that day. Then he turned around and headed back to his bed.

Along the way, Jose decided to express his displeasure with the STA who had decided to persecute him. He filled a large plastic cup with water from the drinking fountain, and splashed it in her face as he walked past her desk. All hell promptly broke loose. The wetly offended STA yelled after Jose, “You’re going in restraints for that!” and immediately sounded a “code white” emergency. Shortly after Jose was back in his bed, security dutifully arrived and removed him to the restraint room -- he walked without the slightest resistance or hostility – where he was secured to a table in four-point, full leather restraints for three hours.

The legal case

Jose’s lawyer friend found out about the incident several days later. By then, Dr. Schwanz had filed a petition in mental health court for an order to forcibly administer the medications Jose had been refusing.

“Mental health court” is a euphemism for a shortcut around due process of law to enable quick involuntary commitments and druggings at the whim of state psychiatrists. In most jurisdictions, it is located in a room in the state mental health facility, not a regular courtroom that is ever used for any other kind of civil or criminal case. A real judge is assigned one day a week for hearings. In Jose’s case, the Assistant State’s Attorney was a part-time, new prosecutor who spent most of her time as a mom at home with small children. Normally the only defense attorney is a state employee from the local office of the Guardianship and Advocacy Commission. Everyone in this compact little jurisdiction pretty well assumes that the “doctors” know what they’re doing, and the medical records are accurate and authoritative or dispositive of any issues presented.

Jose’s CRRP-associated attorney friend reluctantly agreed to defend him against the forced-drugging attempt by Schwanz. Suddenly, “mental health court” was going to have to work a little harder.

At the initial hearing a fourteen-day continuance was granted. During that time, Jose’s attorney filed discovery motions including a request for production of documents and a request for admission of facts. The part-time Assistant State’s Attorney complained that the only thing needed was the medical chart, but agreed to respond for the petitioner. Her response was insufficient and in bad faith. In particular the petitioner, somewhat arrogantly, denied several details of the water throwing incident which were provably factual and which went directly to Jose’s defense that he was provoked and was never otherwise aggressive.

Meanwhile, Jose was being periodically accosted by facility staff who wanted to know what his legal plans and strategy would be with regard to the involuntary treatment petition. His mail from his attorney appeared to have been opened and delivered to him only after a delay of several days. Dr. Schwanz directly and falsely asserted to Jose that the petition was “not an adversarial procedure”, but really for his own good.

At the next hearing Jose’s attorney presented a set of interrogatories to the petitioner, as well as a motion to the court for a protective order against Dr. Schwanz’s continuing attempts to give legal advice under the guise of therapy, to interrogate Jose about his legal strategy outside of his attorney’s presence, and to interfere with his attorney-client communications. The part-time Assistant State’s Attorney was aghast. She complained to the judge that she had never heard of such extensive discovery in any proceeding on a mental health petition. She, along with Dr. Schwanz himself, told the judge that a protective order such as Jose’s attorney was requesting would change the way therapy and treatment were delivered at the state facility. Dr. Schwanz even complained bitterly that Jose’s attorney did not believe in mental illness. Another attorney, from the state Attorney General’s Office, was also in attendance on behalf of the Department of Mental Health. It was all quite colorful. The judge listened carefully and asked that the attorneys for the petitioner submit their arguments and objections to discovery in written form, according to the state code of civil procedure. Another hearing was about to be scheduled in another two weeks, when Jose’s attorney mentioned that he intended to demand a jury trial.

The part-time Assistant State’s Attorney’s jaw dropped. The judge looked confused. Was this really mental health court, or was it some odd Lewis Carroll fantasy with mad hatters and playing card characters?

The judge noted that with a jury demand, the case would have to be transferred to the docket of the regular circuit court. He was about to so order, when he was interrupted by the part-time Assistant State’s Attorney who had gotten some whispered advice from an administrative assistant who liaised with the court for the mental health facility. It was suggested that jury trials were not available in for petitions to involuntarily drug people The judge disagreed, along with Jose’s attorney, citing appellate decisions. It turned out that the judge and Jose’s attorney were wrong, but this was not officially recognized until later.

State law had in fact undergone a very recent change. A jury trial was still available to a respondent in an involuntary commitment proceeding. However, if psychiatrists needed security personnel to hold a patient down and forcibly insert a needle into his or her body to inject neuroleptic drugs that would alter the person’s mind against their will, the right to trial by jury was abolished by the legislature. The part-time Assistant State’s Attorney, the young lawyer from the Attorney General’s Office and the judge in mental health court were unaware of this change in the law, as was Jose’s attorney. But the administrative assistant at the state psychiatric facility knew about it, of course.

A week later at the hearing in circuit court, Jose’s attorney, by now informed of the new law, made constitutional arguments for his client’s right to a jury trial. The circuit judge was predictably reticent to declare the state legislature’s recent work unconstitutional, so the jury demand was denied and the case transferred back to mental health court. Jose and his attorney briefly considered an appeal, and decided it would probably be unnecessary or moot.

Meanwhile, the young lawyer from the state Attorney General’s Office had more or less taken over the pre-trial litigation from the part-time Assistant State’s Attorney. He had filed separate motions to quash the interrogatories and production requests from Jose’s attorney, and to strike the motion for a protective order. Within days after the jury demand was defeated and the case remanded to mental health court, Jose’s attorney issued subpoenas for videotaped depositions of six staff at the psychiatric facility. The state responded to that tactic with a motion to strictly limit the depositions and to prevent the videotaping. Jose’s attorney filed written responses with the court to the various motions to quash and limit discovery, and to the state’s motion to strike his request for a protective order.

Jose’s attorney also filed a motion to compel the Department of Mental Health to transport Jose to an appointment with an independent expert for a private neuro-psychiatric evaluation. This was something that, from merely reading the statutes, appeared to be absolutely automatic. The state clearly had to accommodate the request. However in the event, there were several attempts to thwart it. First, Jose’s attorney was told that the state would not pay for the evaluation unless it was done by an “independent” psychiatrist who worked for them. That objection was handled by the fact that the appointment was already made, and the state was not being asked to pay, but only to transport Jose.

At the last minute, Jose’s attorney received a call from the part-time Assistant State’s Attorney with another objection: the Department of Mental Health was not willing to accept the intended evaluation because Jose’s private psychiatrist was “not impartial”. Jose’s attorney responded that the state was certainly free to argue or present evidence in court that this psychiatrist’s opinion should not be accepted as that of an expert, but the law didn’t say anything about impartiality. It only promised that Jose was entitled to an independent evaluation by an expert of his own choice. The transport was provided on time.

Just before the next hearing in mental health court, the part-time Assistant State’s Attorney remarked that she was having to do so much extra work on this particular case that she would have to increase the rates she was charging the Department of Mental Health for her services. Jose’s attorney acknowledged that it was his entire fault, and volunteered to sign an affidavit to help her get proper compensation if she wanted him to. For the second or third time during the case, the part-time Assistant State’s Attorney made a big point of assuring Jose’s lawyer that she really understood why he was doing what he was doing.

The mental health court hearing on the various pre-trial and discovery motions went almost completely in Jose’s favor. The motion for a protective order was granted. The judge made it clear to the part-time Assistant State’s Attorney and the young lawyer from the state Attorney General’s Office that although it was extremely unusual in practice, the statutes actually did provide that a respondent to a petition for involuntary drugging was entitled to due process of law, meaning every benefit of the rules of civil procedure, discovery, effective counsel, etc. Jose’s attorney promised to be as reasonable as possible about consolidating the document requests and interrogatories. But the key issue for the state, real videotaped depositions of Dr. Schwanz and his associates, was not open to compromise. The judge ruled that the depositions would go forward, and they were scheduled for the following week.

A recess was taken for the parties to work out the specific wording of the compromise on documents and interrogatories. Jose’s attorney sat at a table in a waiting room for over an hour, while the young lawyer from the state Attorney General’s Office consulted with his client Dr. Schwanz. Eventually, Schwanz conceded to drop the petition. Back in mental health court, it took about thirty seconds for the state to tell the judge that Jose no longer met the criteria for involuntary treatment. The petition was withdrawn, case over. Two weeks later, Jose M. was released from the state psychiatric facility without any prescription. As far as this writer is aware, he has not committed a violent crime, or even thrown a drink in anyone’s face, since.

Broad observations and evaluations

1). There is an absolutely amazing disconnection between state mental health law as it was conceived and passed by legislators, and the resulting practices in state institutions and courts. The laws were rather strictly intended to provide due process and effective opportunity for adversarial litigation when the government wants to subject a person to psychiatry he or she does not want. However, in the face of many years of effort and promises by the professional providers of “mental health services” and the bureaucrats who rely on them, the practical policy has become to “encourage” treatment by any and all available means. The reality and importance of this disconnection cannot be exaggerated.

In Jose M’s case, he may have been intentionally set up by his captors, and he was certainly brought to what was expected to be a kangaroo court to authorize his forced drugging. From the reactions of the various players on Dr. Schwanz’s side, as well as two judges, it was quite clear that almost no one ever fights forced drugging petitions with all the tools of litigation they are allowed under the law.

Most institutionalized “patients” are penniless and friendless. Their erstwhile friends and family members usually just want them to “get treated,” without considering whether the whole medical model of mental illness may be impractical or fraudulent. When a psychiatrist like Dr. Schwanz files a petition to involuntarily medicate someone, he probably expects the patient to simply agree to take his meds after all, since the legal decision will be so easily in his favor.

All of this may be reflected in very casual, but very extreme, paternalism. “Well, it’s not really an adversarial process, it’s intended to help you,” was the actual statement from Dr. Schwanz’s mouth to Jose M., in the presence of Jose’s attorney, describing the legal process of petitioning for involuntary treatment in terms completely at odds with the real law. It was probably this statement which convinced the mental health court judge to grant Jose’s motion for a protective order over Dr. Schwanz’s impassioned objections that it would prevent him from doing his therapeutic job.

Because the bureaucrats and the state psychs are so disconnected from real law as it was intended, they make mistakes. They only appear to be difficult to fight in court because almost no one wants to oppose them. Most people with any resources and/or an attorney who believes that there should be a right to refuse psychiatry will ultimately be able to refuse psychiatry, as the law currently stands.

2). Mental health law threatens to change rapidly for the worse. The best example is the new denial of the right to a jury trial in a forced drugging petition. There are many, many experts in mental health law, and probably 99% of them work for the people who want to encourage, meaning coerce, treatment. A year from now, a law may pass banning depositions of mental health workers in litigation of petitions to involuntarily drug people, or mandating that the only independent evaluations a court can consider are those of state psychiatrists. It is impossible to exaggerate how far this could go.

Not long ago, legislators and their constituents hoped that it might be possible to avoid punishing some people who behaved badly. They passed laws reflecting a new theory that perhaps crime and antisocial behavior was really the result of a disease of a hypothetical bodily organ (they selected the brain as the best candidate) containing moral agency. To successfully treat such a disease would cure crime and antisocial behavior, which would be much better, kinder and more enlightened than punitive fines, prison terms, the death penalty, etc. The problem with this whole idea was, it wasn’t true and wouldn’t work.

Long ago, authorities and their constituents hoped that it might be possible to expedite God’s kingdom on Earth by directly combating evil. They passed laws reflecting a new theory that perhaps all manner of civil and ecumenical difficulties resulted from individual humans, usually women, who were the Devil’s contract workers, paid great benefits in exchange for doing His evil work in the world. To successfully extract these witches from the Devil’s service would not only save their souls but bring great progress toward the salvation of humanity. The problem with this whole idea was, it wasn’t true and wouldn’t work.

The development of mental health law is startlingly analogous to the development of witchcraft prosecutions in the middle ages, and it demonstrates that arrogant modern man has not progressed very far at all. Diseases of the brain, chemical imbalances and genetic flaws do not cause crime and antisocial behavior, or anything like what the public currently perceives as mental illness, any more than nature worship, herbal skills and folk rituals caused what the public used to perceive as the Devil’s work in the world. This does not mean that brain diseases, etc., do not exist. No one claims that women never practiced Wicca either. But the history of legal complexity, scholarly sophistication and the durability of the Inquisition and the Great Witch Hunt over three centuries (longer than the Constitution of the United States has existed!) should be considered against our current enthusiasm for mental health codes, civil commitment, insanity pleas, and psychiatric treatment.

The ultimate purpose of law is to insert reason into human conflict and thereby lesson the incidence of violence. Insanity, mental illness, is unreason itself. People will do almost anything to avoid it, to avoid even looking at it or thinking about it. Law about mental illness, or law based on the idea of mental illness reflects this avoidance, and will never be rational law, even as the Malleus Malificarum was not rational despite its meticulous details and voluminous pretenses. Primitive fear of the Devil, the unknown, the irrational, the insane, mocks attempts to analyze. Law and medicine are different fields of human endeavor, but in mental health court and in the courts of the Inquisition that fact was forgotten. Witches were saved by burning, and Jose M. was to be helped by an order allowing Dr. Schwanz to violently assault his body and mind.

Tactical applications

1). The non-drugging of Jose M. illustrates the value of attrition as a litigation tactic. The psychs and bureaucrats do not want to work; they want a court’s quick and easy validation of their power and control. Make them answer discovery demands, make their lawyers respond to pretrial motions, argue everything, even the smallest points, litigate a lot. They might decide to look for an easier target.

2). With Jose M. the best justification for the court’s allowance of vigorous discovery was probably the early bad-faith response of Dr. Schwanz to a request to admit certain relevant facts. Those facts were nothing but a list of the most specific details of the water-throwing incident as Jose M. had related them to his attorney. For example, as Jose had walked back to his room after dousing the STA with water, the STA had yelled, “You’re going in restraints!” Witnesses had heard this clearly. For some reason the fact was denied, way too ostentatiously, by Schwanz in discovery. It may have been that the STA was not technically authorized to make that decision at that moment. It was claimed that she could not cry out, because she “had inhaled the massive volume of water thrown in her face during the attack and was choking.” When things were denied which could definitely have been proven to be true, it became obvious that Schwanz was lying and the whole incident was suspect. Jose’s attorney went for the jugular with those details, relentlessly arguing an entrapment theory of the case: his client had been purposely provoked to set up or manufacture evidence, and depositions, documents, etc., would prove it. An interrogatory was presented about whether the STA had received medical care or trauma counseling after being choked by the water. Schwanz objected to that one. The choking drama was a lie. The trick was to spot a clear, objective contradiction, no matter how small, and relentlessly needle the other side with it forever as long as the litigation continues.

3). Throughout Jose M’s legal case, his attorney took every possible opportunity to describe the “petition for court ordered treatment” as the extreme, violent personal threat that it really was. Euphemisms were not used, accepted or acknowledged. When a “doctor” threatens to forcibly invade the body and violently alter the mind of a “patient” with chemicals, no therapeutic relationship is possible. Dr. Schwanz’s attempt to describe the litigation as only an effort to help Jose began to look slightly obscene, and his protest against the order of protection (it would prevent regular therapy) was not credible. Call “medications for mental illness” dangerous mind-altering drugs. Call “petitions to medicate” violent threats. Call “spades” spades. Emphasize the truth and be extreme about it. Never admit that psychiatrists who want a court order to imprison and drug a human being into oblivion is anything but a human rights criminal. The people who will be embarrassed are on the other side with the bad guys.

4). Lawyers are usually practical people, and they like arguments above all else. Those who represent a state Department of Mental Health or a government psychiatrist might secretly disagree with or disrespect their clients. The same is true of judges. Assume that these people would be on your side if it weren’t their job to help the guy trying to perpetrate crimes against your client. But don’t ever let them suspect that you are in any less than 110% agreement with your client. They will be the ones to talk a Dr. Schwanz into dropping a petition.

5). Mental health workers, and government workers generally, may be shy or cowardly. They do not want to be deposed under oath on video. Threaten them with videotaped depositions and they may abandon the psychiatric ship.

6). Because of the inherent unreality and conflict, mental health codes are incredibly voluminous and complex. That means no one who is subject to it can be sure they are not in violation of some new, small or technical aspect of a state mental health code. It’s very similar to the tax code: you can almost always get somebody, or at least make them think you can get them, if you try hard enough. There is case law to the point that any violation of a public health statute is a prima facie case for medical negligence. So sue state psychs, it’s open season!