Law Offices of James
B. Gottstein
Office of Counsel
907-274-7686 phone
907-274-9493 fax
Attorney for Faith J.
Myers, Respondent
IN THE SUPERIOR COURT FOR THE STATE OF
THIRD
JUDICIAL DISTRICT, AT
In The Matter of the
Hospitalization )
)
of )
)
FAITH J. MYERS )
) Case No. 3AN 03-277 P/S
MEMORANDUM IN SUPPORT OF MOTION TO
DISMISS AND PRE-HEARING BRIEF
Respondent Faith
J. Myers, has moved to dismiss (a) the Petition for
30-Day Commitment (Commitment Petition), and (b) Petition for Court Approval of
Administration of Psychotropic Medication (Forced Medication Petition). This Memorandum is submitted in support of
the motion and is also submitted as a Pre-Hearing Brief.
Involuntary
Commitment and Forced Drugging are very serious invasions into the fundamental rights
of people to be free of confinement and have control over what is done to their
bodies and can not permissibly be undertaken lightly or cavalierly. Alaska Statutes provide that certain
procedures be followed and the United States Constitution, under Opinions of
the United States Supreme Court, sets a high bar before these fundamental
rights can be taken away. Decisions by
the Alaska Supreme Court suggest the constitutional protections it will decide
are mandated by the Alaska Constitution will be even higher. The Petitions here are procedurally defective
on their face and the state does not have a factual situation that meets the
statutory and constitutional requirements for obtaining the draconian relief
requested. In addition, the expert
testimony offered by the state does not meet the criteria established by law
for its acceptance. Finally, to the extent that the procedures
utilized here fail to provide due process, they are fatally deficient, whether
authorized or mandated by statute or not.
The
United States Supreme Court has issued clear guidance as to when it is Constitutionally permissible to confine someone for anything
other than the commission of a crime. In
Foucha v.Louisiana, 504
Addington v. Texas, 441 U.S.
418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979),
held that to commit an individual to a mental institution in a civil
proceeding, the State is required by the Due Process Clause to prove by clear
and convincing evidence the two statutory preconditions to commitment: that the person sought to be committed is
mentally ill and that he requires hospitalization for his own welfare and protection
of others. Proof beyond a reasonable
doubt was not required, but proof by preponderance of the evidence fell short
of satisfying due process. [footnote omitted]
504
Freedom from bodily restraint has always been at the core of
the liberty protected by the Due Process Clause from arbitrary governmental
action. Youngberg v. Romeo, 457 U.S. 307, 316, 102 S.Ct.
2452, 2458, 73 L.Ed.2d 28 (1982). "It is clear that commitment for any
purpose constitutes a significant deprivation of liberty that requires due
process protection." Jones, supra, 463 U.S., at 361, 103 S.Ct., at 3048
(internal quotation marks omitted). We
have always been careful not to "minimize the importance and fundamental
nature" of the individual's right to liberty. Salerno, supra, 481 U.S., at 750, 107 S.Ct.,
at 2103.
The
[I]n civil commitment proceedings
the State must establish the grounds of insanity and dangerousness permitting
confinement by clear and convincing evidence
In the very recent case of Kansas v. Crane, 534 U.S. 407, 409, 122 S.Ct.
867, 869 (2002), the US Supreme Court explicitly re-affirmed the necessity of
compliance with these due process standards as follows:
"[W]e have consistently upheld such involuntary
commitment statutes" when (1) "the confinement takes place pursuant
to proper procedures and evidentiary standards," (2) there is a finding of
"dangerousness either to one's self or to others," and (3) proof of
dangerousness is "coupled ... with the proof of some additional factor,
such as a 'mental illness' or 'mental abnormality.' "
Very important in Crane, is the that
the U.S. Constitution requires specific admissible evidence proving both mental
illness and dangerousness and a finding by the court as to both of them. And, as provided in Foucha, supra., this proof must be by
clear and convincing evidence to pass constitutional muster.[2]
The
"proper evidentiary standards" with respect to expert opinion
testimony as required by the U.S. Supreme Court in Crane and its predecessors can be found in Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 587-89
(1993); Kumho Tire Company, Limited v.
Carmichel, 526 U.S. 137 (1999) and State v. Coon, 974 P.2d
386 (Alaska 1999).
In Daubert v. Merrill
Dow Pharmaceuticals, Inc., 509
Equally important, the Daubert court held that
trial judges must perform a “gate keeping role,” which requires them to “screen
[ ] proffered expert testimony.”
In
order to qualify as “scientific evidence” [under FRE 702], an inference or
assertion must be derived by the scientific method. Proposed testimony must be supported by
appropriate validation . . . i.e., “good ground,” based on what is known. In short, the requirement that an expert’s
testimony pertain to “scientific knowledge” establishes a standard of
evidentiary reliability.
The burden of showing the reliability of challenged
expert evidence is on the proponent of such evidence. See, e.g., Daubert v. Merrill Dow
Pharmaceuticals, Inc., 43 F.3d 1311, 1319 note 10 (9th Circuit),
cert denied 516 U.S. 869 (1995).
The Daubert ruling was expanded and refined in Kumho
Tire Company, Limited v. Carmichel, 526 U.S. 137 (1999). Therein, the Supreme Court answered two
important questions concerning the scope and application of Daubert. First, the court held that the trial
court’s “gate keeping” role applies to all expert testimony, whether it is
based on scientific knowledge or on experience.
Kumho, 526
In State v. Coon, 974 P.2d 386 (
(1)
The relevance of the proposed testimony under
ARE 401;
(2)
The qualifications of the expert under ARE
702(a);
(3)
The reliability of the opinions under ARE
702(a);
(4)
The factual basis is of the type reasonably
relied on under ARE 703;
(5)
The probative value is not outweighed by unfair
prejudice.
Coon, 974 P.2d at
393.
The court also adopted, and vigorously defended, the
“gate keeping” function that Daubert assigns to trial judges. Coon, 974 P.2d at
395-97. Thus, the court “required
trial courts to insure that scientific evidence is both relevant and
reliable.” Coon, 974 P.2d at 390. In
performing the gate keeping role, trial courts should consider the four factors
identified in Daubert:
(1)
Whether
the proffered scientific theory or technique can be (and has been) empirically
tested (i.e. whether the scientific method is falsifiable and refutable);
(2)
Whether
the theory or technique has been subject to peer review and publication;
(3)
Whether
the known or potential error rate of the theory or technique is acceptable, and
whether the existence and maintenance of standards controls the techniques
operations; and
(4)
Whether
the theory or technique has attained general acceptance.
Coon, 974 P.2d at
395.
The Alaska Supreme Court also noted that since Daubert,
federal courts “are giving rigorous consideration to the reliability of
scientific evidence,”
before admitting it. Coon,
974 P.2d at 397 and 66. This view is consistent with the U.S. Supreme
Court’s own assessment, i.e., Daubert and its progeny grant the trial
court broad “discretion to choose among reasonable means of excluding expertise
that is fausse and science that is junky.” Kumho Tire, 526
In Civil
Commitment proceedings, the court should be particularly careful about the
scientific validity under Daubert, Kumho
Tire and Coon of any
"expert" opinion offered to establish the dangerousness criteria,
because as the United States Supreme Court said in Heller V. Doe, 509 U.S. 312, 324 113 S.Ct.
2637, 2644 (1993), "many psychiatric predictions of future violent
behavior by the mentally ill are inaccurate." The state's witness on this issue, Dr.
Hanowell has testified in his deposition that he does not have the requisite
expertise nor scientific training to pass the Coon test to testify as to the future dangerousness of the
Respondent or to have his opinion about whether the court should order
medication accepted. See, Memorandum in
Support of Motion in Limine to Exclude Psychiatric Testimony filed this same
date
AS 47.30.730 is
unconstitutionally vague because it fails to give fair warning of what conduct
is proscribed and provides an insufficient standard restricting the discretion
of the state or the court in applying it.
A statute may be
invalidated as impermissibly vague as a result of one or both of the following
deficiencies, as enunciated by the Supreme Court: (1) failure to give fair
warning of the conduct proscribed by law, and (2) absence of standards
restricting the discretion of governmental authorities or courts who apply the
law. [citations omitted] While the vagueness doctrine has been
employed most often in challenges to criminal statutes, civil statutes have
also been subject to vagueness challenges. [citations
omitted] A review of the
Doe,
supra, 414 F. Supp at 451.
In Johnson v. Solomon, 484 F. Supp 278 (D.
Maryland 1979), the following commitment standard was found unconstitutionally
vague.
a person must be found
affirmatively to possess a mental disorder, requires commitment for the
protection of himself or others, needs inpatient medical care or treatment, and
is unwilling or unable to be admitted voluntarily.
The invalidated standard is essentially
equivalent to the "likely to cause harm to self or others or is gravely
disabled" standard provided in AS 47.30.730(a)(1)
and is similarly constitutionally defective.
AS 47.30.730(a)(7) requires the Petitioner to "list the facts and
specific behavior of the respondent supporting the allegation [of mental
illness, likelihood of harm and being gravely disabled]. The original Commitment Petition only listed
the following conclusory allegations:
1.
Ms.
Myers exhibits clear evidence of a psychotic process
2.
She
is felt to be unable to provide adequately for her basic needs.
Apparently some time after it was filed a
third item was listed as follows:
3.
She
is felt to be unable to provide adequately for her basic needs.
These are, as a
matter of law, an insufficient recitation of facts and specific behavior
as required under AS 47.30.730(a)(7) to support such a
petition.
The state expects
this court to issue an order giving it authority to administer any medication
it may choose. This is impermissible
under AS 47.30.837 because it necessarily requires an analysis of each
medication requested to be administered against the Respondent's desires.
AS 47.30.837(d)(2) provides in pertinent part:
(2) "informed"
means that the evaluation facility or designated treatment facility has given
the patient all information that is material to the patient's decision to give
or withhold consent, including
*
* *
(B) information about the proposed
medication, its purpose, the method of its administration, the recommended
ranges of dosages, possible side effects and benefits, ways to treat side
effects, and risks of other conditions, such as tardive dyskinesia;
*
* *
(E) information about alternative treatments
and their risks, side effects, and benefits, including the risks of nontreatment;
At his
deposition, Dr. Halowell admitted that he did provide
the Respondent with this information.
See, pp 17-19 of the Hanowell Deposition. This alone mandates dismissal of the Forced
Medication Petition.
Moreover the
deposition testimony of Dr. Hanowell shows that he is too uninformed to provide
the information required by law.
Specifically, Dr. Hanowell testified that while he had heard that there
were quite a few psychiatrists, including prominent ones that disagree that these
drugs should be administered, he had not followed the literature on the subject,
even after being informed of their existence.
See, Hanowell Deposition, pp 30-31.
Some of the
information that should inform anyone, including the court, when making a competent
decision regarding the administration of psychotropic medications are the following studies.[4]
1. Leon Epstein, "An Approach to the
Effect of Ataraxic Drugs on Hospital Release
Rates," American Journal of Psychiatry, 119 (1962), 36-47.
This was the first large scale study of
hospital release rates in the 1950s for schizophrenia patients treated with and
without neuroleptics, and it concluded that "drug-treated patients tend
to have longer periods of hospitalization." P. 44.
2. Nina Schooler,
"One year after discharge: community adjustment of schizophrenic
patients," American Journal of Psychiatry, 123 (1967), 986-995.
This National Institute of Mental Health
(NIMH) study looked at one-year outcomes for 299 patients who had been treated
either with neuroleptics or placebo upon their admission to a hospital, and was
the first long-term study conducted by the NIMH. The researchers found that "patients
who received placebo treatment in the drug study were less likely to be rehospitalized than those who received any of the three
active phenothiazines (thioridazine
(Mellaril), fluphenazine
(Prolixin), chlorpromazine (Thorazine)." SEE
PAGE 991.
3. Robert Prien,
"Relapse in Chronic Schizophrenics Following Abrupt Withdrawal of
Tranquillizing Medication," British Journal of Psychiatry, 115 (1968),
679-86.
The critical finding of this NIMH
study was that relapse rates rose in
direct relation to dosage--the higher the dosage patients were on before the
drugs were withdrawn, the greater the relapse rates. At the start of the
study, 18 patients were on placebo, and only one got worse over the next six
months (6%). Sixty-five patients were on 300 mg. of chlorpromazine at the start
of the study, and 54% of these patients worsened after the drug was withdrawn.
One hundred thirteen patients were on more than 300 mg. of chlorpromazine at
the start of the study, and 66% of these patients got worse after drug
withdrawal. SEE TABLE THREE, PAGE 684.
4.
Robert Prien, "Discontinuation of
Chemotherapy for Chronic Schizophrenics," Hospital and Community
Psychiatry, 22 (1971), 20-23.
In
this NIMH study, the earlier finding that relapse rates rose in correlation
with neuroleptic dosage was confirmed. Only 2 of 30 patients who were on placebo at the start of the study
relapsed during the next 24 weeks (7%). Twenty-three percent of the 99
patients who were on under 300 mg. of chlorpromazine
at the start of the study relapsed following drug withdrawal. Fifty-two percent of the 91 patients who were
on 300 to 500 mg. of chlorpromazine at the start of the study relapsed
following drug withdrawal, and sixty-five percent of the 81 patients who were
on more than 500 mg. of chlorpromazine at the start of the study relapsed
following drug withdrawal. The researchers concluded: "Relapse was
found to be significantly related to the dose of the tranquilizing medication
the patient was receiving before he was put on placebo--the higher the dose,
the greater the probability of relapse." SEE PAGE 22, AND 23
5. J. Sanbourne
Bockoven Comparison of Two Five-Year Follow-Up
Studies: 1947 to 1952 and 1967 to 1972, American Journal of Psychiatry, 132
(1975), 796-801.
In this study,
Other researchers who reviewed relapse
rates for
6. Maurice Rappaport,
"Are there schizophrenics for whom drugs may be unnecessary or contraindicted?" International Pharmacopsychiatry,
13 (1978), 100-111.
In this 1978 study, Maurice Rappaport
and his colleagues at the
7. Pavel Muller
and Philip Seeman, "Dopaminergic
Supersensitivity after Neuroleptics: Time-Course and
Specificity, Psychopharmacology 60 (1978), 1-11. Guy Chouinard,
“Neuroleptic-induced supersensitivity
psychosis,” American Journal of Psychiatry, 135 (1978), 1409-1410; Chouinard, “Neuroleptic-induced supersensitivity psychosis: clinical and pharmacologic
characteristics,” American Journal of Psychiatry, 137 (1980), 16-20.
In the late 1970s, Canadian investigators
identified the biological changes induced in the brain by neuroleptics that led
to the higher relapse rates. Because
the drugs dampen down dopamine activity, the brain tries to compensate by
becoming "supersensitive" to dopamine. (The drugs trigger an increase
in the density of dopamine receptors.) This perturbation in dopamine
function makes the patients more biologically prone to psychosis and to worse
relapses upon drug withdrawal. Chouinard concluded:
"Neuroleptics can produce a dopamine supersensitivity
that leads to both dyskinetic and psychotic symptoms.
An implication is that the tendency toward psychotic relapse in a patient who
has developed such a supersensitivity
is determined by more than just the normal course of the illness . . . the
need for continued neuroleptic treatment may itself
be drug-induced." In
other words, the neuroleptics both cause psychosis problems when they are given
and also cause the problem when they are stopped.
8. George Gardos
and Jonathan Cole, “Maintenance Antipsychotic Therapy: Is the Cure Worse than
the Disease.” American Journal of Psychiatry, 133, January
(1976), pager 32-36.
Jonathan Cole was the head of the NIMH
and after a general review of the issue concluded: “An attempt should be made to determine
the feasibility of drug discontinuance in every patient.” In other words, Mr. Cole is suggesting that
all patients currently on neuroleptics should be given the opportunity to come
off the drugs.
9. J. Leff,
"The International Pilot Study of Schizophrenia: five-year follow-up
findings," Psychological Medicine, 22 (1992), 131-145.
The first World Health Organization (WHO)
study that compared schizophrenia outcomes in "developed" and
"developing" countries was called The International Pilot Study of
Schizophrenia. It began in 1968, and involved 1202 patients in nine countries.
At both two-year and five-year follow-ups, the patients in the poor countries
were doing much better. The researchers concluded that schizophrenia
patients in the poor countries "had a considerably better course and
outcome than (patients) in developed countries. This remained true whether
clinical outcomes, social outcomes, or a combination of the two was
considered." Two-thirds of the patients in
10. Assen Jablensky, "Schizophrenia: manifestations, incidence
and course in different cultures, A World Health Organization ten-country
study," Psychological Medicine, suppl. 20
(1992), 1-95.
The second WHO organization study of this
type was called the Determinants of Outcome of Severe Mental Disorders. It
involved 1379 patients from 10 countries, and was designed as a follow-up study
to the International Pilot Study of Schizophrenia. The patients in this study
were first-episode patients, and 86% had been ill fewer than 12 months. This
study confirmed the findings of the first: two-year outcomes were much better
for the patients in the poor countries. In broad terms, 37 percent of the
patients in the poor countries (
WHO researchers noted that in the
developing countries, only 15.9% of patients were continuously maintained on
neuroleptics, compared to 61% of patients in the
SEE TABLE 4.10 ON PAGE 64 (copy of table
reproduced from Mad in America
because of poor copy, and page 90.)
11. Dr. Courtenay Harding’s
studies.
Dr. Courtenay Harding conducted a number
of studies regarding outcomes. She notes in page 730 that 50% of these patients
never used medications, and then, in her interview with the APA Monitor, she
notes, on page 11, that “all of those in her Maine and Vermont studies who
had fully recovered had long since stopped taking medications.” Then, in
her Empirical Correction papers, on page 143, that “It may be a small
percentage (of patients) who need medication indefinitely.” She says it is a myth that patients need to
be on medication all their lives.
12. The One Hundred Years of
Schizophrenia study.
At the same time that the WHO was
reporting on poor outcomes in developed countries, Harvard Medical School
researchers published a study concluding that outcomes for schizophrenia
patients in the U.S. had declined since
the 1970s, to the point they were no better than they had been in 1900.
They found that since 1986, only 36.4% of patients in the
13. The
Pilot Project Soteria Berne.
In this study,
Dr. Honowell by admitting he has not been following the
professional literature on the problems with the drugs he is attempting to get
the court to allow him to administer against people's wills and particularly
his lack of knowledge about the poor long term outcomes that result from what
he is proposing, disqualifies him from being in a position to testify as an
expert in the state's attempt to override a patient's desire to be free from
debilitating, mind-altering substances.
Moreover, it is
the court and the court's job alone to determine the Respondent's
competency. Any interpretation of AS
47.30.839 to the contrary[5] is
unconstitutional.
Thus, respondents appear to rely on the
State's parens patriae
interest as justification for overriding appellants' protests to the
administration of these mind-altering drugs. There is no doubt that the State
may have a compelling interest, under its parens patriae power, in providing care to its citizens who are
unable to care for themselves because of mental illness (Addington
v. Texas, 441 U.S. 418, 426, 99 S.Ct. 1804, 1809, 60
L.Ed.2d 323, supra). For the State to invoke this interest, "the
individual himself must be incapable of making a competent decision concerning
treatment on his own. Otherwise, the very justification for the state's
purported exercise of its parens
patriae power--its citizen's inability to care for
himself * * * would be missing. Therefore, the sine qua non for the state's use
of its parens patriae power
as justification for the forceful administration of mind-affecting drugs is a
determination that the individual to whom the drugs are to be administered lacks the capacity to
decide for himself whether he should take the drugs" (Rogers v. Okin, 634 F.2d 650, 657 [1st Cir.], supra; see also, Matter
of K.K.B., 609 P.2d 747, 750 [Okla.], supra). Such a determination is uniquely
a judicial, not a medical function (see, Rogers v. Commissioner of Dept. of Mental
Health, 390 Mass. 489, 458 N.E.2d 308, supra; Matter of Roe, 383 Mass. 415, 421
N.E.2d 40).
* * *
The State would bear the burden of
demonstrating by clear and convincing evidence the patient's incapacity to make
a treatment decision.
If, after duly considering the State's proof, the evidence offered by the
patient, and any independent psychiatric, psychological or medical evidence
that the court may choose to procure (see, Judiciary Law § 35[4] ), the court
determines that the patient has the capability to make his own treatment
decisions, the State shall be precluded from administering antipsychotic drugs.
[FN7] If, however, the court concludes that the patient lacks the capacity
to determine the course of his own treatment, the court must determine whether
the proposed treatment is narrowly tailored to give substantive effect to the
patient's liberty interest, taking into consideration all relevant
circumstances, including the patient's best interests, the benefits to be
gained from the treatment, the adverse side effects associated with the
treatment and any less intrusive alternative treatments. The State would
bear the burden to establish by clear and convincing evidence that the proposed
treatment meets these criteria.
(Emphasis Added) Rivers v. Katz, 495 N.E.2d 337, 343-4
(NY 1986).
The
right to privacy under the Alaska Constitution is perhaps the strongest in the
country. See, e.g., Valley Hosp. Ass'n, Inc. v. Mat-Su Coalition
for Choice, 948 P.2d 963 (
A woman's control of her body, and the choice
whether or when to bear children, involves the kind of decision-making that is
"necessary for ... civilized life and ordered liberty." Baker, 471 P.2d at 401-02. Our prior decisions support the further
conclusion that the right to an abortion is the kind of fundamental right and
privilege encompassed within the intention and spirit of
We stated in Breese v. Smith, 501 P.2d
159, 169 (
* * *
These rights may be legally constrained
only when the constraints are justified by a compelling state interest, and no
less restrictive means could advance that interest.
Valley Hosp.supra, 948 P.2d at 968, 969.
Respondent
respectfully suggests the state has not come close to making the requisite
showing.
AS 47.30.839(d)
provides
(d) Upon the filing of a petition under (b) of this section, the court
shall direct the office of public advocacy to provide a visitor to assist the
court in investigating the issue of whether the patient has the capacity to
give or withhold informed consent to the administration of psychotropic
medication. The visitor shall gather pertinent information and present it to
the court in written or oral form at the hearing. The information must include
documentation of the following:
(1) the patient's responses to a capacity
assessment instrument administered at the request of the visitor;
(2) any expressed wishes of the patient regarding medication, including
wishes that may have been expressed in a power of attorney, a living will, or
oral statements of the patient, including conversations with relatives and
friends that are significant persons in the patient's life as those
conversations are remembered by the relatives and friends; oral statements of
the patient should be accompanied by a description of the circumstances under
which the patient made the statements, when possible.
This statutory
pre-requisite to granting the Forced Medication Petition has not been met and
Respondent respectfully suggests this requires dismissal.
For the foregoing
reasons, Respondent respectfully suggests both Petitions must be dismissed.
DATED:
Law
Offices of James B. Gottstein
By:
James
B. Gottstein
[1] The United States Supreme Court does not
permit a person to be committed because that person is mentally ill and only
“gravely disabled” but not dangerous.
Thus, only if "gravely disabled" means dangerous under AS
47.30. is it constitutional.
Standards for commitment to mental institutions are constitutional only
if they require a finding of dangerousness to others or to self. Suzuki v. Quisenberry,
supra, at 1121-1126; Doremus v. Farrell, 407 F.Supp. 509, 514- 15 (D.Neb.1975). See also O'Connor v. Donaldson, 422
Doe v. Gallinot, 486 F. Supp. 983 (C.D. California 1979). See,
also, Stamus v. Leonhardt,
494 F. Supp. 439, 451 ( (S.D. Iowa 1976), citing Doremus v. Farrell, 407 F.Supp. 509 (D. Neb. 1975):
Due process and equal protection require that the standards for
commitment must be (a) that the person is mentally ill and poses a serious
threat of substantial harm to himself or to others; and (b) that this threat of
harm has been evidenced by a recent overt act or threat. The threat of harm to
oneself may be through neglect or inability to care for oneself.
The State has
admitted that the allegation of gravely disabled in the Petition for Commitment
is not one that the Respondent is a danger to herself. See, Deposition of Robert Hanowell, MD., at
pp 25 line 15 to page 26, line 9, which is attached to
the Memorandum in Support of Motion in Limine to Exclude Psychiatric
Testimony filed this same date. (Hanowell Deposition)..
[2]
Copies of both Foucha and Crane are attached hereto for the
court's convenience.
[3] Freye v.
[4] All of the studies mentioned here are attached as Exhibits A through Q.
[5] Respondent believes that AS 47.30.839 (f) makes this determination the court's alone, but if not, it is unconstitutional.