How Alaskans can be forced medication against their wishes

Under what conditions can an Alaskan legally be held in a medical facility and given psychotropic medications against his or her wishes?

The case of Bret Bohn -- a 27-year-old hunting guide from Wasilla made a ward of the state after a Superior Court judge deemed he was incapacitated and his family was interfering with his treatment at Providence Alaska Medical Center -- has sparked controversy surrounding the issue of when a person should be kept at a medical facility without consent.

The Law Project for Psychiatric Rights organization got involved, with attorney Jim Gottstein arguing for the court to open sealed documents and bring details of the case to light. Gottstein's nonprofit generally advocates for clients who have been medicated against their will for behavioral and mental health issues. Mental health patients in Alaska can be involuntarily committed for up to half a year and given psychotropic medications if they are found to be unable to make informed consent.

Bohn's case, however, has been deemed a physical affliction. Doctors have diagnosed Bohn as suffering from autoimmune encephalitis, an inflammation of the brain. If a person is found to be incapacitated, as Bohn has, guardianship can be assigned to family, friends or, as a last resort, the state. That guardian then makes decisions regarding health care.

The two sets of circumstances -- incapacitation versus involuntary commitment due to mental health issues -- are governed by separate Alaska statutes, and the processes for holding a citizen at a medical facility depends on which laws apply in an individual case.

Bohn was appointed a state guardian in early February, after a court order decreed him incapacitated and ruled that his family was not capable of making medical decisions in his best interest. Testimony presented to the court included allegations that his mother, Lorraine Phillips, had made threats of harm against him, and that the family wanted him to cease all medications, a move doctors say could kill him.

His family denies the threats of harm and alleges that Bohn is being held against his will and given psychotropic medication that he neither wants nor needs. Bohn was admitted in late October 2013 to Anchorage's Providence Hospital, where he remains today.

Under Alaska state law, an adult can be assigned guardianship if he or she is deemed "incapacitated," meaning unable to make decisions regarding personal health or safety. There are many situations in which this can occur, said Steve Young, acting supervisor of the Public Guardian Section of the Office of Public Advocacy: traumatic brain injury, age-related dementia, stroke, and brain damage due to substance abuse are among them.

When that happens, the "courts will take the next step in making a protective order," Young said. A court visitor is assigned whose job is to investigate the alleged incapacity and report back to the court. In the Bohn case, testimony from several doctors, witnesses and medical records led the court to decide that Bohn was incapacitated. He was assigned a temporary guardianship, and later, a permanent guardianship after the court ruled that his family was interfering with treatment.

Once a person is deemed incapacitated, a guardian is assigned. According to Alaska statute, assigning of the Office of Public Advocacy as guardian is last on the priority list -- seventh in line after the incapacitated person's choice of representative, the family, spouse, adult child, relative or a private professional guardian. Young called OPA the "appointment of last resort."

Even with the office being the last resort, OPA is appointed guardian in 20 percent of such cases, Young said. He said a "large number" of cases make their way to the Office of Public Advocacy every year.

Once the office is assigned responsibility, the guardian has 90 days to produce a guardianship plan for the court. After that, reports are made every year to the court. The guardian must be re-confirmed every three years. The guardianship can also be removed if the incapacitated person's condition improves.

For now, Bohn will remain in state custody until he is deemed capable of making decisions.

Gottstein has gotten involved in this case because he is not convinced that Bohn's affliction is physical in nature.

"It's pretty unclear that the physical condition, if there is one, is not a result of the drugs they've given him," Gottstein said. "Most likely, his problems have all been caused by his doctors."

Under a separate set of statutes, mental health patients can be committed involuntarily and given psychotropic drugs against their will if they are found unable to make informed consent. Anchorage resident Tatauq Muma said that's what happened to her. Muma said she was held against her will after she attempted to take her life more than a decade ago, when she was 23.

Eleven years after the experience, she still does not believe the treatment or medications were helpful. "I don't see any benefit whatsoever for myself," she said.

Muma attempted suicide in January 2003. She was struggling from severe depression and was in a bad relationship, she said. Her sister had committed suicide about six months before. Her father had ended his own life in 1989.

In her depressed state, Muama said she justified the decision by telling herself "my dad did it." Her children would still have their father if she were gone, she thought to herself. One evening, Muma took 500 Tylenol pills. She was found in an unresponsive state by her then-boyfriend, who called an ambulance.

Muma said that she was taken to the Alaska Psychiatric Institute for a week, and then transferred to Providence Hospital, where she was kept for 90 days. She didn't want to be there, she said, but the medications made her unable to communicate.

"I had no choice. I wanted to go home, I wanted to get a job," she said. "I just remember (hearing) 'no' a lot. I had no control over my body at all."

She said her family was not allowed to visit, and she couldn't receive calls. That time is something of a blur, "going in and out" due to the medications, she said. She remembers fighting the staff at times.

Muma said she didn't want the medications, and that they didn't help her. "I felt numb," she said. About halfway through her stay, she said her body developed some tolerance for the medication, and she was able to communicate more fully, leading to her eventual release, she said. About three years ago, she stopped taking medication at the advice of her physician at Southcentral Foundation for Behavioral Health. "I was actually prescribed exercise in place of my medication," she said. "I've seen a much bigger improvement."

She said her experience at Providence still haunts her.

Providence is barred from discussing specific patient treatment due to federal privacy laws.

A person may be involuntarily committed to a mental health facility via an ex parte court order. The ex parte petition can be filed by any adult, after which a judge, or a designated mental health care professional, conducts a screening investigation of the person. If the judge finds that there is probable cause that the person is mentally ill and may be a harm to themselves or others, they can be brought to a facility for an emergency evaluation, if necessary, by a peace officer.

Once at the facility, the patient is examined by a mental health professional and can then be kept at the facility for up to 72 hours on an emergency basis.

After that, the facility may petition the court for a 30-day commitment, then a 90-day and 180-day commitment. The petition must prove that the respondent is mentally ill and likely to cause self-harm or harm to others, or is gravely disabled, and that there are no less-restrictive alternatives, such as appointing a family member as guardian. The patient has the right to an attorney, to present evidence and to cross-examine witnesses at the trial, and the patient can request a trial by jury.

At Alaska Psychiatric Institute, 94 percent of patients are brought in via ex parte order. API had more than 1,600 admissions in 2013, according to Dr. Jenny Love, medical director for the facility. However, most people stay on past the 72 hours voluntarily, and involuntary commitment is relatively rare, she said. Fewer than 10 cases last year involved patients staying in the hospital involuntarily for 90 or 180 days.

Involuntary medication is even rarer, Love said. The cases "are few and far between. They are the exceptional circumstances."

A mental health patient can be given forced medication under two circumstances: in a non-crisis situation or a crisis situation.

In a crisis situation -- in which medication is deemed necessary to prevent immediate harm to a patient or another person -- a facility may administer psychotropic medication regardless of whether the patient is capable of giving informed consent. Then, medication can only be given for up to 72 hours, and only up to three times during a patient's stay.

In a non-crisis situation, a patient can be given involuntary medication if the court determines a patient lacks the capacity to give informed consent to the medication, or if a patient's agent, under a power of attorney, consents to the use of medication.

Gottstein argued that the "decision should be honored" when someone doesn't want medication. He referenced the 2006 Alaska Supreme Court case, Myers v. Alaska Psychiatric Institute, in which the court ruled that the hospital planned to administer Myers psychotropic drugs without proving that it was in her best interest or that no less intrusive alternatives were available.

Gottstein argues that the drugs cause more harm than good, and forcing someone into treatment also compounds the problems.

"Most of the time people that end up in the hospital are terrified," Gottstein said. He believes facilities should work with clients to see what treatment they agree to instead of relying on involuntary treatment in some cases.

Gottstein himself was held involuntarily at API in 1982. "I was told I would never get better," he said. His experience in the facility is what later prompted him to establish the Law Project for Psychiatric Rights.

Based on 10 years of experience, Love said she has seen cases where psychotropic medication has been beneficial and cases where the drugs have not benefited the patient.

If the drugs do not benefit the patient, she must then reevaluate whether the diagnosis was incorrect or the wrong drugs were being used to help the patient. Everyone responds to medication differently, she said: "Medicine in general is very complex."

Love advises the staff to engage in dialogue with patients, to let them know that "it's not an automatic guarantee that just because you disagree you're going to have involuntary medications."

"We try to emphasize having an ongoing shared dialogue with the individual about their treatment," she said.