Date: Sat, 11 Dec 2004 16:18:40 -0900
To: ghaire@state.mt.us
From: Jim Gottstein <jim@psychrights.org>
Subject: Forced Drugging and the Law

Dear Mr. Haire,

Mr. Oaks has shared your (below) response with me.  I am an attorney, working with the Law Project for Psychiatric Rights (PsychRights).  PsychRights' mission is to fight unwarranted forced medication through mounting a serious legal campaign against such abuses. 

The first thing to note is that we have not been told the truth about these drugs that are being forced on unwilling victims.   It has recently come into public scrutiny about the lies and deception the drug companies have committed with respect to the Selective Serotonin Reuptake Inhibitor (SSRI) antidepressants and how they cause kids to commit suicide.   And how the FDA has become complicit in this.  The Vioxx debacle demonstrates this is not restricted to psychiatric drugs.  What is less well known, but also well established is that the psychiatric drugs typically forced on people, the neuroleptics, including the so-called "atypicals," are neither safe nor effective and in fact not only prevent people from getting better, but exacerbate people's psychiatric symptoms.  See,  e.g., The case against antipsychotic drugs: a 50-year record of doing more harm than good, by Robert Whitaker, Medical Hypotheses, Volume 62, Issue 1 , 2004, Pages 5-13, which can be accessed on the Internet at http://psychrights.org/Research/Digest/Chronicity/50yearecord.pdf.  All of the studies cited in the 50-Year Record paper can be downloaded from http://psychrights.org/Research/Digest/Chronicity/NeurolepticResearch.htm and additional information retrieved from http://psychrights.org/Research/Digest/NLPs/neuroleptics.htm.

The basic point is that these drugs are unbearable to many people, they don't help most, they can be fatal and are clearly life-shortening.  Under these circumstances the state should not be allowed to force anybody to take them.  However, as the internationally recognized mental health disability law expert Michael L. Perlin has noted:

[C]ourts accept . . . testimonial dishonesty, . . . specifically where witnesses, especially expert witnesses, show a "high propensity to purposely distort their testimony in order to achieve desired ends."  . . . 
 
Experts frequently . . . and openly 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 JLHEALTH 15, 33-34.

This dishonest testimony is explicitly lauded by prominent members of the psychiatric establishment.  E. Fuller Torrey, M.D., perhaps 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.

Torrey, E. Fuller. 1997. Out of the Shadows: Confronting America's Mental Illness Crisis. New York: John Wiley and Sons. 152.  Dr. Torrey goes on to say this lying to the courts is a good thing.   Dr. Torrey also quotes Psychiatrist Paul Applebaum as saying when "confronted with psychotic persons who might well benefit from treatment, and who would certainly suffer without it, mental health professionals and judges alike were reluctant to comply with the law," noting that in "'the dominance of the commonsense model,' the laws are sometimes simply disregarded." 

You say that people's rights are being protected, but it is well-known that:

Traditionally, lawyers assigned to represent state hospital patients have failed miserably in their mission.

Competency, Deinstitutionalization, and Homelessness: A Story of Marginalization, Michael L. Perlin, Houston Law Review, 28 Hous. L. Rev. 63 (1991).

Interestingly, it is the Montana Supreme Court, in In the Matter of K.G.F., 29 P.3d 485 (Montana 2001), which has issued perhaps the seminal case on the standards attorneys representing people facing involuntary "treatment" must meet.

1.      Appointment of competent counsel. Any attorneys representing a Respondent in an involuntary mental health proceeding should have specialized training in handling involuntary mental health proceedings. The Court also found that the Respondent has a right to counsel of their own choice. "Therefore, it is critical that the district court, upon appointment of counsel, provide the patient-respondent with clear and concise information describing the attorney's name and qualifications in order for the patient to then make an informed decision as to whether to accept appointed counsel, or for good cause shown and based on compelling reasons request the appointment of different counsel, or retain alternative representation."
 
2.      The initial investigation "before and after the required meeting with a patient, under 53-21-121(3), MCA, counsel should conduct a thorough review of all available records. Such inquiry must necessarily involve the patient's prior medical history and treatment, if and to what extent medication has played a role in the petition for commitment, the patient's relationship to family and friends within the community, and the patient's relationship with all relevant medical professionals involved prior to and during the petition process.". "counsel should be prepared to discuss with his or her client the available options in light of such investigations, as well as the "practical and legal consequences of those options."."Prior to or following the initial client interview, counsel should also attempt to interview all persons who have knowledge of the circumstances surrounding the commitment petition, including family members, acquaintances and any other persons identified by the client as having relevant information, and be prepared to call such persons as witnesses." The Court states that the attorney can (and should) request extensions beyond the five day hearing date if necessary.
 
3.      The client interview The Court requires that the attorney meet with the Respondent sufficiently prior to the hearing to be able to present effective representation. The Court then lists half a dozen topics that the attorney must specifically discuss with the Respondent.
 
4.      The right to remain silent After finding that the right to remain silent applies to a Respondent when being examined by a mental health professional, the Court states "We conclude that it is critical for the patient-respondent, via assistance of counsel, to be allowed to make a voluntary and knowing waiver of his or her right to remain silent prior to the commencement of this examination, see 53-21-119(1), MCA, or, in the alternative, that counsel must be present during the "examination" similar to a criminal interrogation or a civil deposition. We emphasize again that the right to counsel cannot under any circumstances be waived. See 53-21-119, MCA. We conclude, therefore, that it would be a patent due process violation for the "examination," as provided for under 53-21-123, MCA, to be conducted without the assistance of counsel as provided herein."
 
5.      Counsel as an advocate and adversary "The guidelines create the presumption that a client wishes to not be involuntarily committed. The ultimate decision of whether a patient-respondent should be involuntarily committed, therefore, should not be independently made by counsel."  "Thus, we conclude that pursuant to the foregoing guidelines, evidence that counsel independently advocated or otherwise acquiesced to an involuntary commitment--in the absence of any evidence of a voluntary and knowing consent by the patient-respondent--will establish the presumption that counsel was ineffective." "In the courtroom, an attorney should engage in all aspects of advocacy and vigorously argue to the best of his or her ability for the ends desired by the client."

(summary from the Montana County Attorney's Association website, http://www.treasurestate.com/mcaa/cases/KGF.htm)

Turning now to Montana's forced drugging statute, Montana Code Annotated, 53-21-127(6), provides that a person can be force drugged if the court finds "involuntary medication is necessary to protect the respondent or the public or to facilitate effective treatment."  This seems clearly unconstitutional.   Just about four years ago, in In the Matter of S.C., 15 P.3d 861 (Montana 2000), the Montana Supreme Court side stepped the issue by saying S.C., did not specifically argue that the commitment statutes are either unconstitutional on their face or as applied to her.  Id, 15 P.3d at 863.  

While the Montana Supreme Court's failed to acknowledge a "common law" right against forced drugging in S.C., the United States Supreme Court certainly has recognized a federal constitutional right for decades:

The forcible injection of medication into a nonconsenting person's body represents a substantial interference with that person's liberty.

See, e.g., Mills v. Rogers, 457 U.S. 291, 102 S.Ct. 2442 (1982), and Washington v. Harper, 494 U.S. 210, 221-222, 110 S.Ct. 1028, 1036, 108 L.Ed.2d 178 (1990).  The decision is also seriously out of step in holding that a diagnosis of mental illness automatically renders someone incompetent to decline medication.  See, e.g., Rogers, 458 N.E.2d 308 (Mass. 1983) and Rivers v. Katz, 495 N.E.2d 337 (NY 1986). 

Most recently, and after S.C., the United States Supreme Court issued its decision in Sell v. United States, 539 U.S. 166, 123 S.Ct. 2174 (2003) which was over forcibly medicating someone to make him competent to stand trial.  There, after confirming the constitutional right against forced drugging ("In Harper, this Court recognized that an individual has a "significant" constitutionally protected "liberty interest" in "avoiding the unwanted administration of antipsychotic drugs."), the United States Supreme Court laid down the following constitutional guidelines:

First, a court must find that important governmental interests are at stake.
 
Second, the court must conclude that involuntary medication will significantly further those concomitant state interests.
 
Third, the court must conclude that involuntary medication is necessary to further those interests.  The court must find that any alternative, less intrusive treatments are unlikely to achieve substantially the same results.
 
Fourth, as we have said, the court must conclude that administration of the drugs is medically appropriate, i.e., in the patient's best medical interest in light of his medical condition.  The specific kinds of drugs at issue may matter here as elsewhere.  Different kinds of antipsychotic drugs may produce different side effects and enjoy different levels of success.

(emphasis is original).  While Sell is a competence to stand trial case, it is inconceivable a person facing forced drugging in the context of civil commitment has fewer rights.

That these issues have never been seriously pursued by the public defenders in Montana merely serves to confirm that forced drugging victims are not being vigorously represented.

In the final analysis it is merely glib to say, as you do, that people's rights are being protected.  They are not.  It is highly probable that none of the four people who have contacted us actually meet the legal requirements to be forcibly drugged.   What we have is an abuse of power by the state, including what ultimately are sham legal proceedings.  My suggestion is that you personally talk to these people and get their stories.   Look fairly at the trumped up evidence used to lock them up and then force drug them, keeping in mind that it is supposed to be only in the most serious cases that such massive curtailment of constitutional liberties are allowed.

On Dec 10, 2004, at 9:54 AM, Haire, Gene wrote:

Mr. Oaks:

Your e-mail message sent to the Governor's office via the Montana State
web page has been forwarded to me. The Mental Disabilities Board of
Visitors operates a legal services office at Montana State Hospital.
Among other things, our Attorney and our Paralegal/Advocate represent
patients (an administrative/clinical, not a judicial process) in
"involuntary medication" procedures at the hospital. Requirements for
the administration of medications to patients against their wishes are
defined in Montana statute
http://data.opi.state.mt.us/bills/mca/53/21/53-21-127.htm and in 
Montana
State Hospital policy
http://www.dphhs.state.mt.us/about_us/divisions/ addictive_mental_disorde
rs/montana_state_hospital/vol_ii/18_psychiatric_svcs/ involuntary_medicat
ions.pdf.

Because of confidentiality requirements, I will not address any 
specific
patient concerns with MindFreedom. The Mental Disabilities Board of
Visitors believes that the following statements accurately describe how
"involuntary medications" are handled at the commitment hearing level
and at Montana State Hospital:

1)  The authorization of the "chief medical officer of a facility or a
physician designated by the court to administer appropriate medication
involuntarily" [from Montana Code Annotated, 53-21-127(6). 2003.] is a
judicial decision made in the context of an involuntary commitment
hearing. During these hearings, respondents obviously have
representation of counsel as well as other due process protections.

2)  The Montana State Hospital policy and procedure for considering
treating physicians' requests to administer medications against the
wishes of patients are good, err on the side of pursuing other
(voluntary) alternatives, and include 14 and 90 day reviews.

3) Montana State Hospital only pursues involuntary medication if the
treating physician believes that an individual will continue to meet 
the
criteria for involuntary commitment
http://data.opi.state.mt.us/bills/mca/53/21/53-21-126.htm unless he/she
takes medication, and if all other alternate measures have been
attempted and failed.

4)  The Mental Disabilities Board of Visitors is involved throughout
this process as an advocate for patients.

Gene Haire
Executive Director
Mental Disabilities Board of Visitors
Governor's Office
(406) 444-3955

James B. (Jim) Gottstein, Esq.

Law Project for Psychiatric Rights
406 G Street, Suite 206
Anchorage, Alaska  99501
Phone: (907) 274-7686)  Fax: (907) 274-9493
jim@psychrights.org
http://psychrights.org/

  Psych Rights
            Law Project for
       Psychiatric Rights

The Law Project for Psychiatric Rights is a public interest law firm devoted to the defense of people facing the horrors of unwarranted forced psychiatric drugging.  We are further dedicated to exposing the truth about these drugs and the courts being misled into ordering people to be drugged and subjected to brain and body damaging procedures against their will.  Extensive information about this is available on our web site, http://psychrights.org/. Please donate generously.  Our work is fueled with your IRS 501(c) tax deductible donations.  Thank you for your ongoing help and support.