Our project is a grass roots, independent group of volunteers with a strong perspective favoring full legal rights and autonomy for people regardless of any actual or perceived disability. We reject the assumption that psychiatric diagnosis determines the existence of any actual disability, and support the right of every individual to describe his/her own experience.
A number of groups and individuals have shown interest in the project, including: Brooklyn NAACP, Poverty Awareness Coalition, Haitian Centers Council, Disabled In Action, Brooklyn Ethical Culture Society, Fort Greene Senior Citizens Center, and NARPA (National Association for Rights Protection and Advocacy).
The Brooklyn Supreme Court Mental Hygiene Part has been the subject of much criticism by advocates for the rights of psychiatric inmates and by the legal community, particularly during the tenure of Justice Maxine Duberstein. The Mental Hygiene Law Court Monitoring Project was begun in June 1997 in response to these criticisms. Since that time we have observed almost every regularly scheduled hearing of that court, and taken notes as we were able.
Due to a prohibition initiated by Judge Reinaldo Rivera on the first date of our court monitoring, we were unable to write in the courtroom while hearings were going on. This prohibition continued until December 1997, when it was challenged and lifted by a decision on the record in open court (also by Judge Rivera).
However, during the period covered by this report, June through October 1997,
we were unable to take notes concurrently with the hearings but had to rely on
memory and write them in the hallway after the hearing was concluded.
In this report, we examine the Brooklyn Court's conduct of Rivers hearings. We chose to focus on Rivers hearings for the following reasons: Observers noticed that these hearings seemed particularly confused and muddled, with no "clear sense of witnesses" and no true focus on the relevant issues. Observers and supporters who had been aware of the Rivers decision had thought that forced drugging was for all practical purposes eliminated in New York State, and were surprised to learn that in fact it was alive and well. Psychiatric inmates often experience forced drugging as the worst nightmare of their incarceration.
These hearings are mandated by the New York State Court of Appeals case Rivers v. Katz, which held that involuntarily detained psychiatric inmates have a constitutional right to refuse unwanted psychotropic drugs. It further established that if a hospital nevertheless wants to use the state's parens patriae power to force drugs on a person against his/her will, the hospital must apply for a court order. The hospital has to prove by clear and convincing evidence that the individual lacks the mental capacity to make a decision concerning her/his own treatment, which Rivers emphatically asserts is not synonymous with a determination that the individual is mentally ill and meets criteria for involuntary commitment.
If the hospital establishes the individual's lack of capacity to make this decision, the court may examine whether to grant the order, "giving substantive effect to the liberty interest" of the individual, which in practice has become an examination of whether the "benefits" of psychotropic treatment outweigh the "risks" of such treatment.
The hearings may also be held for other medical procedures or psychiatric
procedures, such as electroshock (we heard two separate hearings on one case
regarding a medical procedure during the time covered here), if the hospital
wishes to perform it on an involuntarily detained psychiatric inmate who refuses
to consent to the procedure. However, almost all cases involve a request to
authorize medication with neuroleptic drugs, typically haldol decanoate and
prolixin decanoate, which are long-acting injectable forms of the drugs.
The Mental Hygiene Part is a "Special Part" in the Supreme Court. It is responsible for hearing civil commitment cases under the Mental Hygiene Law, as well as cases under the Criminal Procedure Law regarding defendantsí fitness to stand trial and ultimate release of those who are found not guilty by reason of insanity. It also hears forced drugging cases (or requests for other forced treatment) and, in Brooklyn, hears applications for "mental health warrants" under MHL § 9.43 (a procedure which the Brooklyn court encouraged and heavily promoted under Judge Duberstein), and hearings upon the "return of a warrant" bringing the allegedly mental ill person into court. The court also hears cases relating to disposition of children in mental health facilities, and at times, other issues relating to people incarcerated in psychiatric institutions.
MHLS (Mental Hygiene Legal Service) is an agency under the supervision of the
Judicial Department in which it is located. It is the agency responsible for
representing people who are incarcerated in psychiatric institutions or at risk
of being incarcerated. MHLS has offices within the state and city hospitals, and
has an attorney responsible for clients in each institution including private
ones. Although people have the right to be represented by a private attorney, if
they can hire one, we only saw a request for this once, and it was severely
hampered by the court (this was not for a Rivers hearing but return of a
warrant). All the hearings covered in this report were represented by MHLS.
Judge Duberstein had presided over the Mental Hygiene Part exclusively for over ten years, except for short periods when other judges filled in. During the time covered by this report, she was in the process of retiring. Judge Rivera, who currently (as of June 1998) is the primary presiding judge in that court, was the main backup judge at that time, and we saw an approximately equal number of cases between Judge Rivera and Judge Duberstein. There were a few other judges who heard cases on days when neither Judge Duberstein nor Judge Rivera was available. Of those, only Judge Albert Tomei was observed doing Rivers hearings.
The hearings were held in a small courtroom at the end of a corridor in the Supreme Court Building, constructed especially for this purpose with an adjacent waiting room and clerk's office. All parties to hearings (i.e. people who are currently incarcerated in psychiatric institutions; applicants for warrants, etc.) and their witnesses and supporters, used the waiting room and entered through it. Psychiatrists and the one hospital administrator who regularly attended hearings were able to use either entrance, and customarily sat in the courtroom as soon as they arrived. Attorneys also sat in the courtroom at the beginning of the day (both hospital attorneys and MHLS attorneys). Court personnel (law secretary, clerks, court officers, court reporter) were also present. At times there were groups of visitors observing from medical school, nursing school or social work school.
Members of our project initially had entered through the waiting room, and sat there talking to people who were waiting for their hearings, who usually arrived in a group from the hospital at the beginning of the day, accompanied by hospital staff and, from city hospital, hospital police. This was valuable in learning the perspective of those who were to be subject to the justice rendered. Within a few weeks, however, Judge Duberstein prohibited us from using the waiting room and instructed us to enter through the clerk's office. Nevertheless, we still occasionally entered the waiting room to speak with the people and also managed to speak with people in the general corridor.
Once we entered through the clerk's office, we also were able to hear attorneys discussing the calendar and to chat informally with attorneys, court personnel, the hospital administrator and psychiatrists. We noticed that psychiatrists and the hospital administrator were privy to hear the calendar, to hear cases other than their own and to have input into attorneysí decisions. On a least one occasion, a psychiatrist had the opportunity to forcefully advocate for his preferred case to be heard that day, and prevailed. (9/30/97 #3, see main body of report).
A typical hearing began with the psychiatrist on the witness stand being sworn in. Usually this happened before the respondent (person against whom the hospital wishes a forced-drugging order) was even brought into the courtroom. Respondent was brought in and shown where to sit, next to attorney. Psychiatrist testified, MHLS cross- examined. Then MHLS had the opportunity to present its case, which if presented at all, consisted generally of the respondents own testimony. Generally, respondent testified unless the person had chosen not to come to court. If an independent psychiatrist had been ordered by the court, or retained by respondent, MHLS would call that person as well. [FN 1] Judge Duberstein was known to discourage or prevent other witnesses form testifying on behalf of respondent. (We did not observe this in any Rivers hearings, but did observe it on occasion in retention hearings.)
The hospital psychiatrist, usually the designated "treating psychiatrist" or
a supervisor, testified as an expert witness, here, on the issue of capacity to
refuse treatment and the "risks versus benefits" of the drugs, as well as on the
diagnosis and symptoms of mental illness and any information in the record that
was useful to their case. The psychiatrist often remained on the witness stand
after testifying, even during respondentís testimony. Respondents who attempted
or asked to take the witness stand were prevented from doing so. At times,
respondents were not sworn in but indulged in speaking their piece. The witness
stand was physically the highest point in the room other than the judgeís bench
and on the right hand side next to the judge. It directly faced the attorneyís
table and particularly faced the place where respondent usually sat.
In our notes, we use the dates and a number to identify each specific hearing observed. These are not the calendar numbers. Also, unless otherwise indicated, orders were granted in each case discussed.
Statistics: Out of 35 Rivers hearings, 25 orders were granted; 4 were denied. 6 cases were adjourned or had some other disposition.
Judge Rivera heard 10 cases, granted 7, and denied 2. [FN 2] One case was adjourned.
Judge Duberstein heard 22 cases, granted 17, and denied 0. 3 cases were adjourned due to appointment of independent (in retention hearing) and 2 cases were disposed of by other means.
Judge Tomei hear 3 cases, granted 1, and denied 2.
Overall finding: With the exception of Judge Tomei, the judges are
overwhelmingly predisposed to agree with the psychiatrists' conclusions.
Psychiatrists advocating forced medication are not closely questioned as to how
they made the determination that a person lacks capacity. They are not made to
specify in detail the numerous risks associated with neuroleptic drugs, nor are
they usually required to detail the benefit sought or their weighing of risks
versus the benefits for this particular person. At times evidence relating to
the personís dangerous behavior is presented over the objections of attorneys
that it is irrelevant and prejudicial. The first and most colorful evidence
presented is typically of the person's mental illness, admitting circumstances
and diagnosis. Often it is not clear how a particular piece of evidence is meant
to relate to either capacity or the risks and/or benefits of the drug. Most
often, closing arguments are neither offered nor required.
At times capacity is not addressed by the hospital attorney at all. It is often not adequately addressed by MHLS either. From one case, 9/9/97 #1, "Did you explain to him the pros and cons? Yes." (Direct examination) (The only question remotely related to the capacity issue asked on direct examination; it means nothing without knowing at least the individualís response.) "You think he lacks capacity? Yes." (Cross examination) Neither one was followed up to elicit basis or challenge it. When it is addressed, it is often in conclusory terms without the requirement of justifying these conclusions. The court appears to accept this since it granted all orders in such cases. MHLS typically does not challenge this as evidence. Other instances of the hospital not addressing capacity occurred on 8/7/97 #7, 7/9/97 #1 and 9/16/97 #1.
When capacity is addressed by the hospital attorney and psychiatrist, it is often in ways indistinguishable from a standard for involuntary commitment (or worse). Lack of belief that she is mentally ill (8/5/97 #1), lack of insight into the need to take medication, (8/14/97 #1), "lack of insight, lack of judgment, canít make reasoned decision because of mental illness" (8/12/97 #3) are offered. 8/7/97 #1: "Does she have any insight?" "No."
6/24/97 #1: An individual wouldn't talk to psychiatrist, and when another hospital staff member told him she's his advocate, he said, "no, you're the hospital's advocate." This was said to be evidence of paranoid delusions and lack of judgment and insight.
Believing one is a political prisoner (also 8/14/97 #1) and refusing to answer psychiatrist when he "tried to talk to him about the pros and cons of haldol and prolixin", plus not coming to court (also 8/12/97 #3), are offered in this context as well. In the latter case the psychiatrist said this was evidence of his "paranoia". The respondent in the former case as well was labeled "paranoid", as was respondent in 9/16/97 #1, with no basis being stated for this. In yet another case (9/23/97 #1) the man was said to lack capacity "based on the fact that he's socially isolative." Another psychiatrist speculated that "his mother was psychotic, maybe he got drugs associated with his mother and that's why he doesn't want to take them" (7/15/97 #3).
The psychiatrist in 10/14/97 #2 alleged that respondent is "suspicious and guarded; when you talk to him you can't have a rational conversation." On 8/7/97 #6, the response to a question about a physician's knowledge of psychiatric drugs was "He's obviously so overwhelmed and terrified, I'm saying he knows about the drugs when he's not psychotic."
Respondents' resistance to psychotropic drugs as part of what they believe to be illegal incarceration is treated as evidence of their lack of capacity. On 10/21/97 #2, a court-ordered independent psychiatrist testified that respondent "says he stopped taking it because he's being illegally detained in the hospital." On 6/24/97 #2, "she says she's been kidnapped, doesn't have a mental illness, wants to go home." This is an example of her "delusions", and as well as "lack of insight and judgment." On 10/28/97 #1, cross examination asked, "What was her reason for refusing?" Judge sustains objection, restates, "Did you ask her?" "Yes." "What was her response?" "She says she didn't need the medication; the system put her here because they didn't want her to preach."
This case appears to argue for respondent's capacity rather than lack of it: 6/10/97 #2: In the hospital, she did not take psychiatric medication or thyroid medication. She refused to see the hospital endocrinologist or do what that person said. But she said she'd do what her private endocrinologist said. He spoke to her by phone in (hospital) psychiatrist's office. After that she agreed to take thyroid medication and also the psychiatric medication, but then she only took the thyroid one.
Also, 6/24/97 #1: Respondent says he had a conversation with another psychiatrist at the hospital about tardive dyskinesia from haldol. He says he got TD from haldol. He agreed to take zyprexa because it doesn't cause TD. They wanted him to take 10mg, he bargained to 5mg and psychiatrist agreed. But then he didn't take it because they took him to court (going back on the agreement they had made with him).
Another way of implying lack of capacity is to address the question on direct examination, "Did you attempt to explain to her the risks and benefits?" Often this by itself is offered without further embellishment. 9/9/97 #1, "Have you explained to him the benefits and the risks?" "Yes." On 10/28/97 #1, this question was responded to, "Yes, many times." "Do you think she lacks the capacity to make a reasoned decision?" "Yes--itís overshadowed by her psychosis." On 7/15/97 #2, psychiatrist said they told her pros and cons but she wouldn't say anything. (On 9/9/97 #1, cross examination elicited information about tardive dyskinesia by asking "did you explain the risks as well as benefits?" but did not pursue the capacity issue). On 9/11/97 #1, the judge asked this question. Response: "I told her she wasn't doing well, ...[somewhat more in this vein that was not picked up by observer] and she said 'I don't need the medication.'" On 9/30/97 #3, "Did you attempt to explain the risks and benefits to her?" [presumably a "yes" answer] "And what was her answer?" "That I needed a bullet through my head."
This illustrates the difficulty with mixing together issues of risks v.
benefits and capacity, particularly when it is not clear in what terms "risks
and benefits" are being discussed with respondent, and when the overall context
of the discussion is adversarial and potentially coercive.
The issue of harm (or "risks") versus benefits is addressed in the following ways:
As to benefits: often in answer to the question "Why did you choose this medication for this person?" the psychiatrist answers "because it's available in long-acting (decanoate) form." (6/24/97 #1, 7/15/97 #3, 9/9/97 #1, 10/28/97 #1). On 7/8/97 #2, the hospital attorney asked, "what is it about his mental condition that makes it appropriate to give haldol?" The psychiatrist looks startled. The hospital attorney asks, "Why do you want to give him haldol?" Answer: "Because it can be given by injection in decanoate form. [I] prefer haldol because that lasts for one month, [request] prolixin in the alternative--it last for one week."
A slightly more general answer is, "because it's an antipsychotic and I chose that one." (9/23/97 #1). Each one of these uninformative as to why, acting in the best interest of the patient, the court should find that the benefits to this person outweigh the risks, or indeed that there are any reasonably expected benefits at all. Going a little further, we might on rare occasion hear "for psychotic and manic symptoms" (6/24/97 #2) or "to reduce symptoms of schizophrenia" (9/4/97 #3). This merely echoes the prescribing indications and does not discuss the specific benefits anticipated for the individual.
6/10/97 #2: They want to give her navane, she'd been on that for a year. Reason is to keep her on the same drug. Also: "If she doesn't take the drug, do you see her release any time in the foreseeable future?" "No." (This is obviously self-fulfilling.)
On the other hand, only two psychiatrists specified that haldol decanoate was being requested for "delusions and hallucinations" (7/8/97 #2), "delusions and auditory hallucinations" which had been alluded to in the retention part of this bifurcated hearing. (9/11/97 #1). However, in this case the "auditory hallucinations" was pure speculation.
Another psychiatrist offered the apparently sincere opinion that the individual "would deteriorate without help" in the opinion of the Mobile Crisis Team psychologist; "this psychiatrist concurs." (9/9/97 #2).
On several occasions, the alleged benefit appears to be more about sedating troublesome or potentially violent individuals. Haldol "calms him down", 9/16/97 #1; she is "more agreeable, more pleasant" after being injected with haldol (9/30/97 #3); he was "more pleasant and agreeable" when he took olanzapine for a few days (9/9/97 #1). Each of these cases contain allegations of dangerous behavior or, in the last case, "in-your-face" behavior that "felt threatening" to the psychiatrist. In the second case (9/30/97 #3) the psychiatrist heatedly advocated that his case go forward on a day when Judge Duberstein was only able to hear a few cases due to illness. "We have to do [respondent's name]. We have to medicate her." A case on 9/23/97 #1 presented evidence over the objection of MHLS concerning a gruesome crime of mutilation that the man had committed. Despite its irrelevance and prejudicial nature, this was accepted. "Would you say he's ready to live in the community?" "No." Objection overruled.
On 7/17/97 #1 (Judge Tomei denied) hospital introduced evidence of respondent's allegedly dangerous behavior which had to be subdued by an IM (intramuscular) injection of haldol: She had smeared the occupational therapistís lipstick with a plastic knife after being told to get up from the table where she was sitting because the OT wanted to use it. On that occasion MHLSís objection was sustained.
Another circumstance in which an individual may not be the primary intended recipient of alleged benefits of the psychiatric drug is where the family or a residential facility has a strong desire to have the person medicated. 9/9/97 #1: Psychiatrist wants to return him to mother, only support system is family. They care very much about him and don't want him back without medication. 8/7/97 #6 (the physician): Psychiatrist testifies that the man "did very well with haldol and stelazine according to his wife," who is also a physician and was in the courtroom. During the retention part of this bifurcated hearing, testimony was that the "treatment objective is to return him to his wife in the community" and that his wife is participating in treatment decisions, over his objections. 10/14/97 #2: He threatened and attacked his mother; had done this before according to family. Hearsay objection was answered: "did you consider this in making your diagnosis?" [apparently answered in affirmative.] "Family doesn't want him home without medication." 7/8/97 #1: Prolixin "allowed her to live in an adult home."
As to risks: When risks, or harmful effects (the language used by the hospital implies a minimal chance of their occurrence) are enumerated, they tend to be a short list: sometimes as short as "EPS [extrapyramidal symptoms]" (9/4/97 #3). "Muscular effects" (7/15/97 #2). "Muscular rigidity and sedation" (8/7/97 #6). "Involuntary movements including tardive dyskinesia" (9/11/97 #1). "Involuntary movement disorders" (7/17/97 #1) - Judge Tomei denied this one. "Anticholinergic - dry mouth, dry eyes (7/17/97 #3) - Judge Tomei denied this one as well. The longest list in our notes was "tardive dyskinesia, extrapyramidal symptoms, blurred vision and hypertension" (6/24/97 #2). 8/14/97 #1: MHLS brings out on cross examination the "most common side effects of haldol": "EPS - stiffness, tongue moving around in mouth." There appears to be a reliance on a common assumption that the risks are unimportant and not worth addressing.
Psychiatrists more often do not state adverse effects actually experienced by the respondent in the particular case. On 9/16/97 #1, side effects were claimed to be "minimal" and not specified. On 7/15/97 # "Risperdal made him drowsy." 8/7/97 #6: "He experienced sedation from haldol." 9/30/97 #3: "haldol gave her a stiff neck." This, according to the psychiatrist, was not substantiated, or could not be substantiated. On 6/10/97 #2, when asked about side effects, the psychiatrist acknowledged the blurred vision "from before" but said that could be imipramine which she was taking at the same time. The side effects respondent had said she had, psychiatrist said were "not normal." Given the standard prevalence rates of EPS, the most common adverse effect, sometimes estimated at 90%, this may be serious underreporting.
MHLS asked in a cross-examination, 7/8/97 #2, "Wasn't he taking Risperdal before?" [Yes] "Don't you give Risperdal when a person has side effects from a medication like haldol?" Objection sustained. "Did you give this man Risperdal because of side effects?" Judge Duberstein said it doesnít matter. Risperdal can't be given by injection. If a person is refusing medication, he won't take Risperdal.
Perhaps such a response by the judge suggests why MHLS attorneys do not often make the effort to do effective cross-examinations.
6/24/97 #1: Respondent says he has tardive dyskinesia. Judge Duberstein: "He
doesn't have it now. Tardive dyskinesia doesn't go away." While Judge Duberstein
prides herself on having taken courses from psychiatrists on issues relating to
their testimony, she has not encountered the description of intermittent pattern
of tardive dyskinesia. "A little knowledge is a dangerous thing."
The adverse effects of haldol listed in the PDR (Physicianís Desk Reference) [FN 3] cover 4 columns, including 5 warnings, 10 precautions, and 13 adverse reaction categories, with 5 subheadings under CNS (central nervous system) effects.
Central nervous system effects are represented mostly prominently by tardive dyskinesia (given special treatment as a "Warning"), a "potentially irreversible" disorder of uncontrollable movements that persists after the drug use ends, and for which there is no known treatment. Tardive dystonia is also possible. Movement disorders characterized as "EPS" or extrapyramidal symptoms (also known as pseudo-Parkinsonism) include many of the effects cited above: akinesia (lack of movement); akathisia (extreme restlessness-which can lead to IM injections for "agitation"); dystonias (muscle spasms); and more. Other CNS effects are confusion, agitation, headaches, insomnia, anxiety, grand mal seizures, and exacerbation of psychotic symptoms including hallucinations.
Other categories include intestinal effects, autonomic reactions, "special senses" - eye problems, dermatologic reactions, hematologic effects, liver effects, endocrine disorders, respiratory effects and body as a whole: neuroleptic malignant syndrome (also specially targeted under "Warnings") and heat stroke. In addition, cases of sudden death have been associated with haldol.
Neuroleptic malignant syndrome is characterized as a "potentially fatal symptom complex" including hyperpyrexia (fever), muscle rigidity, altered mental status (including catatonic signs), and evidence of autonomic instability (such as irregular pulse or blood pressure). New York's Commission on the Quality of Care for the Mentally Disabled reportedly has 5 NMS deaths on file, and a California agency has reportedly documented 200 such deaths.
Precautions relate to use on people: with a history of severe cardiovascular disorders; receiving anticonvulsant medications or with history of seizures or EEG abnormalities; with known allergies or a history of allergic reactions to drugs; or receiving anticoagulants. Other precautions refer to concomitant anticholinergic (e.g. cogentin) administration, potentiating CNS depressants such as opiates, mood swings when treating mania, severe neurotoxicity in patients with thyrotoxicosis. Studies involving carcinogenesis were somewhat inconclusive, although one did indicate increased mammary gland cancer in female mice. Antipsychotic drugs are acknowledged to elevate prolactin levels.
Besides tardive dyskinesia and neuroleptic malignant syndrome, there are warnings on usage in pregnancy, combined use of haldol and lithium, and 4 others under the heading of "general" included cases of bronchopneumonia (some fatal) necessitating particular care with the elderly; decreased serum cholesterol and/or cutaneous and ocular changes being associated with similar drugs; impairment of performance in operating machinery or driving; and necessity to avoid use with alcohol.
MHLS does not appear to be well-versed in mainstream psychiatric literature
documenting adverse effects as well as questioning alleged benefits. Nor do they
appear to be well-versed in the PDR, and have not in our observations used the
PDR or any scientific literature to challenge psychiatristsí assertions. MHLS
does not usually attempt to bring out detail or subjective experience in their
Judge Duberstein often asked the psychiatrist "Will he be monitored [for adverse effects]?" and "What will you do if he manifests side effects?" (Answer: "Give cogentin.") (e.g. 10/21/97 #2; also asked first question in re: tardive dyskinesia on 9/11/97 #1). Now the hospital attorneys often ask, simply, "Will he be monitored?" and/or "What will you do if he manifests these effects?" without getting testimony on the actual risks (8/12/97 #3, 10/28/97 #1). Also in re: depakote (a so-called "mood stabilizer," used to replace lithium): blood levels will be checked for toxicity, so if effects occur, lower dosage. 8/12/97 #3: Psychiatrist "would give cogentin" if any side effects manifested. Psychiatrist may volunteer the information and request cogentin as part of the order along with the neuroleptic (9/16/97 #1).
The problems with this are the following: Cogentin does not alleviate the effects other than extrapyramidal symptoms - i.e. the restlessness, rigidity, muscle spasms, etc., and only alleviates these partially. Cogentin masks the development of further brain damage and is considered to worsen tardive dyskinesia. Cogentin also has adverse effects including toxic psychosis, disorientation, visual hallucinations, digestive problems, blurred vision, a total of seven categories. Some of its adverse effects are the same as that of haldol.
Furthermore, "monitoring" is unclear, not made a part of any court order, and does not remove the brain damage of tardive dyskinesia (or end any other harm) once it has occurred. The tendency of psychiatrists to dismiss complaints of harmful effects (noted above) makes them singularly unreliable monitors of such concerns.
To dispose of the necessity of weighing harm versus benefits of treatment with neuroleptic drugs by indicating the availability of cogentin to treat one out of the sixteen categories of adverse effects associated with haldol, is ludicrous and disrespectful of the rights of respondents and the duty of the court.
In addition to this, it often is used to make respondent's choice to refuse
neuroleptic drugs seem unreasonable: on 9/30/97 #3, "Did you offer her a
medication for that?" "Yes, but she wouldn't take it."
In conclusion, the hospital attorney typically asks the psychiatrist, "In your opinion, do the benefits outweigh the risks or do the risks outweigh the benefits?" (Answer is the obvious.) (This is not typically noted by observers, as it is routine.)
How does the court itself weigh the adverse effects against alleged benefits? The oft-heard speech given by law secretary Elliot Raines to people observing the hearings, may shed some light on an answer. Mr. Raines has stated repeatedly, on occasion within the hearing of Judge Duberstein or Judge Rivera, that "the benefits always outweigh the risks" with two exceptions: elderly women, and people who have been taking neuroleptics for a long time without a "weaning-off period" (these are both categories at high risk for developing tardive dyskinesia).
In fact, not even elderly women escape their fate: two cases of elderly women
were disposed of without Judge Duberstein appearing to consider their high-risk
status (7/8/97 #1, 9/11/97 #1). 9/11/97 #1 was the case of an elderly woman with
a heart condition (heart attack the previous year) and a cancer. She had been
taking haldol but stopped. MHLS asked, "Will haldol have any effect on her heart
condition?" but accepted the psychiatrist's answer, "No," without further
challenge. An observer noted the PDR in the adjoining clerk's office,
which would have clearly contradicted this testimony.
MHLS cross-examination leaves a great deal to be desired. It does not appear to be developed as an adversarial examination of a hostile witness, with the usual development of a line of questioning in order to elicit a contradiction. At times the MHLS attorney appears to be making the opposing sideís case. "Safe to say there were no side effects?" "Yes." (8/14/97 #1). "Why did you specifically give him haldol?" "Because it's available in a decanoate form and he has a history of noncompliance." (8/12/97 #3). In these two cases, cross examination consisted entirely of four, and two, questions, respectively. In the latter, MHLS declined to make a closing statement but "rest[ed] on the record."
Some other cases indicated a rough idea that could be built on, but is not managed effectively. "Is it reasonable for him to refuse medication?" "He says there's nothing wrong with him." "Is it possible there is nothing wrong with him?" [This elicited a detailed answer to the effect that no, it was not possible for this to be the case.] (10/14/97 #1).
In other instances, obvious lines of argument are either ignored (as in cases where attorneys do not raise questions about hospital's failure to show lack of capacity) or inadequately pursued (as in numerous instances where a psychiatrist's response is allowed to stand without further challenge - see 9/11/97 #1 above).
MHLS attorneys have participated in the court's denial of their clients' rights and refusal to treat them as true participants in their own case: by failing to object when clients are denied the right to take the witness stand, by failing to pursue relevant lines of questioning, and by failing to adequately explain court procedure and the judge's ruling. Some also seem to have a problem communicating and establishing rapport with their clients (9/30/97 #3, 9/11/97 #1, 7/17/97 #1, 8/7/97 #7). Sometimes this lack of rapport is manifested by treating the client in an infantilizing manner and not treating the testimony seriously.
As we show in this report, when attorneys do represent their clients'
asserted position, they are usually stymied by the court. The quality of
representation is uneven, depending on the attorney, the respondent and the
judge (before a judge who is not accustomed to the part, attorneys will make a
greater effort to establish a fresh perspective).
Respondent's case is often the most interesting from the perspective of determining exactly what the person's objection is to the drugs; this should be instructive to the court in judging capacity to make the decision, as well as considerations that should be added to the adverse effects versus benefits question.
Often this testimony is quite eloquent, yet it is typically met with disinterest or worse from the court.
A quite rational basis for making a "reasoned decision" about whether or not to take psychiatric drugs (medical training) was disqualified on two occasions. A former psychiatric nurse (6/24/97 #3) and a physician (8/7/97 #6) were assumed to be severed from their professional knowledge. While the physician did not come to court (his professional knowledge was brought out by MHLS in cross-examination of the hospital psychiatrist), the former psychiatric nurse was prepared to testify about her knowledge of the drugs from her professional experience, and was prevented from doing so by Judge Duberstein. She did express concern about the "potent" drugs, particularly in relation to her neurological problems. While she did get the judge to specify that the hospital couldn't medicate her before consulting with her neurologist, the order granting the hospital's application was entered, and an observer later learned that she was in fact medicated.
People who are able to express clearly their reasons for refusing have been treated with hostility by the court. Both Judge Rivera and Judge Duberstein have behaved shamefully in this regard.
This respondent is a lay person who has strong opinions and beliefs about the negative effects of the neuroleptics: On 8/5/97 #1, Judge Rivera conducted questioning of a respondent that can only be called cross-examination. The woman had said she's 63 years old, doesn't want chemicals in her body. To the judge's question "Why?" she answered that itís clean. She said she's a Christian, her mood is happy and calm. The medications change your thinking and "I don't want to change my thinking." Judge Rivera asked two lines of questions that the observer identified: First, the woman agreed a psychiatrist is an expert on whether people are mentally ill. However, she did not "think that maybe he could be right" about her. Second, he asked if she ever got headaches, and would she take aspirin? She answered that it was a rare occurrence but yes, she would take "only store bought aspirin, and rarely." She wanted to explain, but the judge cut her off. Unfortunately, her lawyer did not follow up to elicit this explanation.
Other respondents have a similar position regarding their right to control their own bodies. A woman (8/7/97 #7) said in her own testimony: "I'm not taking it." "I feel that I don't want it." "These are my feelings." She had a Spanish interpreter during the hearing, but spoke in English when she testified. She clearly believes that she has a right to base her decision on her feelings, without having to give the court an explanation. (This case was decided by Judge Rivera.)
A man who chose not to come to court (7/8/97 #2) was reported by the testifying psychiatrist as having articulated the following: "He's in a free country, America, he has a right to hear the voices, and a right not to take medication. He understands he will always hear the voices and feels he can live with them." This would appear to conform to the court's wish for the person to acknowledge his mental illness (the "insight standard"), however the order was granted (by Judge Duberstein) in this case as in the others.
People who describe adverse effects they have already experienced are not accepted as making a competent decision. Case 10/21/97 #2, again shows hostility to an articulate respondent. Besides saying that the medication "didn't help" him, he struggled to get out the specific ways in which it troubled him. This time, the attorney courageously kept insisting on his client's right to speak, in the face of Judge Duberstein's attempts to interrupt the man. Finally, he said he couldn't concentrate and he couldn't do other things he used to do. "I'm a very calm person, now I can't sit still." Judge Duberstein did not appear to evaluate this in the light of capacity, but immediately turned to the independent psychiatrist who had testified that day, and asked "Will he be monitored?" Answer: "This is akathisia, theyíd give him inderal or cogentin or reduce it." The judge then asked the treating psychiatrist, who was in the courtroom (unsworn on this date), "Will he be monitored?" Answer: "Yes." That was the end of the hearing, the order was granted.
Some people are not so articulate (although as we shall see in the examination of Judge Tomei's cases, careful questioning by a judge can elicit coherent and full information). However, they are still able to state their refusal and some basis for it. Example (9/30/97 #3): (MHLS direct examination): Question: "Why don't you want to take medication?" "I take it but when it doesn't make me feel good I don't." "Did it make you feel worse?" "Yes." She also said, "It's not good for you" and "It kills you." Another example (9/11/97 #1 - the elderly woman with a heart condition): (her attorney did not ask for the woman to be sworn in nor did she conduct an examination, but simply let the woman speak): she says she took it. Now she doesn't want it any more. Something happened, a different medication. She started talking about "pink pills, blue pills," she asked the pharmacist but the pharmacist didn't understand what she was talking about. She didn't need it. Under careful questioning, the court or her attorney might have discovered whether she was experiencing a change in the way she felt on the medication, if perhaps the doctor had changed the prescription unknown to her, or if the pharmacy had made a mistake in filling the prescription. No such questioning was conducted. Here the court has as little concern for the "patient's" well-being as it does for her liberty interest.
On 6/10/97 #2, a woman said she had stopped taking navane because of the side effects. It gave her blurred vision and did something to her mouth that she appeared to be trying to illustrate with her hands, possibly dry or twisted mouth. Her lawyer asked, "what did the doctor tell you the medicine was for?" "He said it was to make me feel better." "And did it make you feel better?" "No." Not only did she offer reasons (adverse effects which she was apparently unwilling to undergo); here it appears as if the doctor did not effectively communicate with her in order to give her sufficient information to form a "reasoned" opinion on that basis. However, she still expresses herself clearly. (This woman used a Russian interpreter for the hearing but spoke in English for her testimony.)
After a recess, this woman's attorney said she had offered to take Risperdal
orally. Judge Rivera emphasized that she also had to agree that they would have
the authority to medicate her over her objection if she did not take the
Risperdal. The Judge said the side effects weren't so bad. When the psychiatrist
expressed a concern that she might refuse again, Judge Rivera replied, "you have
the order." Smiling, he said, "you can go intramuscular."
Other individual cases are of note because they raise interesting questions or shed light on the outlook of the judge. Here are two cases of Judge Rivera's which are worth mentioning:
On 8/19/97 #3 and 8/20/97 #1 - a continuation of the previous day, a young man was in court for a bifurcated hearing on retention and the Rivers issue. Judge Duberstein had previously appointed an independent psychiatrist in the case, and both the independent and the treating psychiatrist testified. The independent believed the man should remain in the hospital for the purpose of discharge planning, but he believed the man should not be medicated against his will. The independent's testimony on the issue of medication came on the second day. It was much more lengthy than is usual in cases where the psychiatrist advocates forced treatment, due in part to Judge Rivera's questions and comments. Among those questions and comments are: "What is his judgment and insight?" "If you medicate him, won't that take care of the underlying physical disorder?" and "As far as I know, you haven't been diagnosed as psychotic, he has." The independent was able to apply his considerable knowledge and experience to supporting his position, which he restated in many different ways. "I would like him to take medication but he is making a reasonable choice. His choice is rational in that he can explain reasons for it in understandable terms. He doesn't think he has a mental illness, the medication gives him side effects and makes him feel bad. He knows that the psychiatrist wants to give it to him because the psychiatrist thinks he has an illness that this would cure." He spoke about side effects as reported by the respondent, about the dangers of forcing him to take medication when he doesn't want it (deterring him from seeking help in the future); made an analogy with a routine medication situation: In response to the judge's question, "Does he have the necessary insight, as an expert, to weigh the pros and cons, the judgment to form his opinion?" the independent said: "If I went to a cardiologist and the cardiologist wanted to put in a catheter, I wouldn't have the same expertise he has. But I would hope he wouldn't put it in me, if I said no." "His decisions are not based on anything psychotic...it's based on his reasons, his independent experience and interpretation within his own value set." The psychiatrist finally affirmed, "Despite his psychosis, he's making a reasoned decision." That was the end of direct examination (by MHLS) and after some cross-examination, the judge called a recess and held a conference with the attorneys, after which both sides rested. After an application (closing statement) by MHLS and the hospital "rest[ing] on the record", Judge Rivera denied the order, saying the hospital had not met the criteria. This case is illustrative of what might be sufficient for Judge Rivera to deny an order: a psychiatristís unambiguous conclusion to the effect that the elements of the law are satisfied. In addition, it shows the assumptions he makes about mental illness and its relation to competency to make a treatment decision, as well as a belief that "mental illness" really is a biological disorder which is "taken care of" by neuroleptic drugs.
This psychiatrist stated that if the man's psychosis had not been in remission, he would have had a different position about the right to refuse treatment. He appeared to be mixing the issue of harm versus benefits with the issue of capacity. He also stated that there are two ways of determining the reasonableness of a decision: by its inherent reasonableness, or by the reasoning process. "If I tell you I want to take some blood and you hold out your arm, Iím not going to ask you, 'do you know Iím going to take your blood now?'" In this case he apparently looked at the reasoning process since it was a decision that he disagreed with.
The other case, (9/4/97 #3), was also a bifurcated retention/Rivers hearing where the retention aspect was granted and the Rivers order denied. Here, the woman was in fact taking medication (on the advice of her attorney). Her attorney used that fact as an argument for her competence to make a reasoned decision: "Does the fact that she's taking haldol by mouth tell you anything about her capacity to make a reasoned decision?" Answer: "Well, that was part of an agreement with her attorney." In addition, the attorney asked in cross-examination, "has she told you she doesn't want injections because sheís afraid of becoming drug dependent?" (Answer: "No.") and "Has she told you when she took haldol decanoate she had excessive menstrual bleeding?" (Answer: "No.") In his application the attorney said, "she's agreed to take it by mouth, [that] shows competence to make a reasoned decision." In Judge Rivera's ruling he stated "Not shown she lacks competence; sheís taking it by mouth albeit not as much as the doctor would like her to take."
This was only time that Judge Rivera was heard to make a specific finding on
capacity; it appeared to be directly related to the fact that the woman was
complying with, rather than refusing neuroleptic treatment. (Her attorney
appeared to be responding to his clientís wishes, particularly her fear and
dislike of the injections; however, remember that Rivers v. Katz established the
right to involuntarily confined psychiatric inmates to refuse unwanted
Finally, we turn to Judge Tomei. In three cases observed, (although one of them is not available in typed form) Judge Tomei denied two orders and in a third modified at the request of MHLS to be limited to Elavil to address the woman's depression, which MHLS attempted to show was the real basis psychiatrist had for considering her to lack capacity to make the decision.
In the two cases which he denied, (7/17/97 #1) and (7/17/97 #3), Judge Tomei showed understanding of the difference between risks versus benefits and capacity, and paid a great deal of attention to the issues particular to each case.
In the first case, an elderly woman had stopped taking the drug before admission and continued to refuse. Hospital introduced evidence about alleged dangerousness, incidents in the hospital when hospital had seen fit to give her an emergency injection. The objection by MHLS was sustained. After respondent was sworn in, she refused to answer questions put to her by her lawyer. She said, "I've been called." It became apparent that she wished to take the witness stand in order to testify (which right had been habitually denied respondents in that courtroom). Judge Tomei allowed her to do so, and questioned her there since she was not communicating well with her attorney. She spoke very specifically about having a bladder problem, and systematically eliminating all the medications she was on until she discovered which one was causing this problem. She then stopped taking it. Judge Tomei ruled in her favor, saying that she was capable of making a reasoned decision about her treatment, and also that the benefits did not outweigh the risks.
The second case was that of a homeless man, a bifurcated retention/Rivers
hearing. Judge Tomei allowed the retention, but denied the Rivers. MHLS brought
out testimony about tardive dyskinesia and neuroleptic malignant syndrome, and
elicited some details about each one. Then MHLS drew the psychiatrist's
attention to another doctor's report, in the man's record, saying he's taking
AZT, possible dementia. Psychiatrist testifying was not aware of the AZT, and in
response to the question, "Doesn't that mean he has HIV?" The psychiatrist
answered that he'd have to give an HIV test. The man had not testified for
himself, and no significant issue of capacity or its lack was presented. It is
possible that the judge was responding to the known risks of the drug in
general, or to the failure to consider the impact of the manís medical condition
and other drugs on prescribing neuroleptics.
In discussing conclusions, we refer to Judges Duberstein and Rivera, who have been the primary hearers of these cases (Rivera remains so), and bear responsibility for the overall quality of the court.
Contrary to Rivers, the decision which is "uniquely judicial" (determination of capacity) has been de facto returned to the "medical" profession by judges who refuse to exercise their independent fact-finding duty. This has also been true of the ultimate determination of whether to grant the order.
As we have already pointed out, to Judges Duberstein and Rivera, "the benefits always outweigh the risks." It appears as if they reason backwards from this to conclude that since the benefits are so obvious and the risks so minimal (due to a failure to consider them in depth) only an irrational, psychotic person could refuse to take the drugs when they are prescribed by a psychiatrist. It is the psychiatrist's decision that is of paramount significance, not that of the person who is being subjected to forced drugging. As one observer has pointed out, "the standard is compliance", not capacity.
Judge Duberstein told Daily News reporter Bob Liff that she "strictly follows the psychiatrists' findings." Judge Rivera has only denied an order when a person was complying with a drug regimen or when a psychiatrist has testified with unshakable vehemence that forced drugging was not in the person's best interest, and that "despite his psychosis, he's making a reasoned decision" (in other words, stating his conclusion in the language of the Rivers decision itself). In all circumstances where the person is refusing, and there is only the "treating" psychiatrist testifying as expert witness (in favor of forced drugging) the orders are granted.
Such deference to psychiatrists neutralizes the effect of Rivers with regard to backing up the constitutional right to refuse recognized in the decision. We have observed evidence in the courtroom that this is the case, and it is confirmed by reports of attorneys and peer advocates (in Brooklyn and other jurisdictions as well; see below for further analysis).
One advocate stated that, while people are refusing at the state hospital where she works, hospital staff will "provoke emergencies" in order to avail themselves of the second provision of Rivers, the police power justification. Our observations show testimony about use of "emergency" drugging in questionable situations (e.g. "agitation", pacing, verbal arguments with staff or other patients).
An attorney stated that most cases of people who refuse do end up going to court, unless the person changes his/her mind (and there is a lot of pressure to do so: this attorney himself mentions to people who are likely to lose a hearing that refusers tend to stay longer in the hospital). The administrative review hearings also, in this attorney's opinion, degenerate into pressure to take the drugs. We have heard numerous adjournments of hearings "because she's taking the medication." At least twice we heard that drugs were negotiated for a promise of discharge. Since almost everyone loses in court, and administrative hearings rarely dislodge the original psychiatrist's opinion, this means very few people successfully refuse.
Another advocated stated that in his experience, people who successfully refuse are self-contained, "non-wild-eyed", and don't scare easily in the presence of authority. This speaks volumes about what is really at issue, and the prejudicial nature of an evaluation of "capacity".
While some of the problems we have noted are specific to Brooklyn (abuses such as denial of the right to take the witness stand), the most important issues are more endemic.
An article in a psychiatric journal from 1990 found much the same pattern as we have described by studying Rivers hearings in the Central New York Psychiatric Center. [FN 4] People have been aware of the problems with Rivers within only a few years of its implementation. Nevertheless, it, and the Massachusetts decision preceding it, Rogers v. Commissioner of Mental Health, 340 Mass. 498 (1982), have been the pattern that other states have followed in recognizing a "right" and providing a contravening procedure to deny it.
The following are problems and issues related to this practice of using "capacity to make a rational decision about treatment" as a standard for allowing people to exercise the right to refuse psychotropic drugs prescribed by a psychiatrist under conditions of confinement.
1. The right to refuse psychiatric drugs is modeled on the "right to die" rather than the "right to choose" (determine the outcome of a pregnancy). The implication is that the negative choice has consequences that society should protect a person against, when in fact it is closer to the defiance of outside control that so outrages people who wish to force women to submit to compulsory pregnancy.
2. AIDS has shown us that education and provision of confidential, anonymous, voluntary services can be effective in slowing the spread of an epidemic. The gay male community, which strongly advocated and pursued this path, has seen a decline in the spread of the disease. It also strongly advocated against fear, discrimination, and hatred of those with the disease: we may remember that quarantine was proposed in the early days of AIDS, and successfully avoided. Despite continuing problems of access to appropriate care, cost, AMA hegemony limiting the information about and availability of alternatives, people have created imaginative, wonderful healing regimens for themselves and ways to respond with love and compassion to those affected.
3. Psychiatric incarceration and drugging is a unique situation in that it purports to be both "medical" and penal. [FN 5] It is the only situation, contrasted to criminal proceedings, where a person's denial of the crime (mental illness) is permitted to be used as evidence to impose punishment.
First amendment protections should be all over this, beginning with the fact that psychiatric drugs destroy the independence of the brain and, therefore, the mind's ability to produce thought. Supreme Court Justice Kennedy has recognized the interference of psychiatric drugs with a person's right to counsel (ability to participate in his own defense). [FN 6]
There is no other situation where people's expression or speech, particularly their reaction to a situation of hostility and danger, is so strongly held against them. The crime of "resisting arrest" comes close, but here speech or even refusal to speak is enough to warrant a finding that a person does not merit the right to control her own body and mind, and subject her to harm.
The fact that the harm done is camouflaged by a social agreement that it is
"for their own good" does not mitigate its effects,either physical or emotional,
mental or spiritual. It can cause the same type of trauma experienced by
survivors of war, sexual abuse/rape, torture or any other situation of abuse;
augmented by the physical brain damage caused by the chemical interference with
We support all efforts to enforce, strengthen and guarantee the right to refuse psychotropic drugs, including:
1. Rotation of judges in the Mental Hygiene Part to provide a better chance of a fair hearing.
2. Removal of MHLS from judiciary supervision, and a clear, more adversarial stance to the opponents seeking to deny their clients freedom.
3. Use of advance directives to refuse drugs and electroshock.
4. ADA (Americans with Disabilities Act) challenges.
5. Legislative initiatives making the right to refuse absolute.
6. Education of the public with regard to the harmful effects of the drugs, and knowledge of what their rights are vis a vis the psychiatric system.
For more information, please contact:
tminkowitz at earthlink.net, substituting the symbol "@" for "at"
This report and its recommendations have been endorsed by:
Disabled in Action
P.O. Box 30954
Port Authority Station
New York, NY 10011-0109
FN2. One of Judge Rivera's denials was a case where respondent was in fact taking psychotropic medication.
FN3. The information given here is from the PDR, available in public libraries and also noticed in the clerk's office in the Mental Hygiene Part. The information there comes from the drug manufacturers. For additional information regarding neuroleptic drugs, see David Cohen, Ph.D., "A Critique of the Use of Neuroleptic Drugs in Psychiatry," in Seymour Fisher and Roger P. Greenberg, eds., From Placebo to Panacea: Putting Psychiatric Drugs to the Test. New York: John Wiley, 1997 (includes comprehensive bibliography including mainstream psychiatric journals). Also see Peter R. Breggin, M.D., Brain-Disabling Treatments in Psychiatry: Drugs, Electroshock and the Role of the FDA. Springer, 1997.
FN4. Frank H. DeLand, M.D. and Neal M. Bornstein, M.D., "Medicine Court II: Rivers in Practice," Am. J. Psych. 147:1, Jan. 1990.
FN5. An attorney who read this has suggested that it is misleading to say that psychiatry "purports" to be penal. What I mean is that it purports to have a social control function, which is often indistinguishable from punishment.
U.S. Supreme Court Justice Kennedy in concurrence, Riggins v. Nevada, 112 S.Ct.
1810 (1992) at 1820.
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