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Unwarranted Court Ordered Medication: A Call to
Action
by James B. Gottstein, Esq.
November, 2002
(minor modifications to 4/24/2003; Section on Alternatives
added 9/26/2004)
The purpose of this article is to outline a primarily legal process directed toward ending the wide spread practice of subverting the legal process and subjecting people diagnosed as mentally ill to unwarranted court orders requiring them to submit to harmful psychiatric medications. It is not the intent here to support the conclusions that these medications are dangerous, do great harm to many people and are actually counter-productive as widely used. Nor is it the purpose here to support the proposition that the legal process is being subverted. These are covered in other articles, such as Psychiatry: Force of Law, Scientific Research By Topic and Psychiatric Myths. The purpose of this article is to describe a campaign to try and bring honesty into the administration of this legal aspect of the mental health system. People who have a lot of experience with the mental health system, particularly "Mental Health Consumers," will say, "of course the system is extraordinarily unfair and harmful and based on lies." However, the vast majority of the general population not only has no idea what goes on, but will absolutely refuse to believe that the everyday horrors of the mental health system are true or widespread.
The current situation for mental health consumers/survivors/ex patients (C/S/X) or the "psychiatrized" can be analogized to the legal plight of African-Americans before the great legal campaign led by Thurgood Marshall and the NAACP in the 1940's and 1950's established their rights as full citizens and to be free from legally sanctioned (and mandated) discrimination. The thesis of this article is that a similar campaign should be mounted on behalf of people diagnosed with mental illness.
Most people will say, "But some people clearly need to be subjected to these kinds of court orders for the protection of the populace and themselves." The truth is, however, that this is the logic used for the wholesale locking up and over medicating people who do not meet the legal requirements for these court orders. In other words, the point is that the mental health system should be required to follow the constitutionally mandated and statutory rules as to who should be subject to these court orders.
The Force of Law article is intended to provide an overview of the legal setting, while this article is intended to describe what might be done about it. However, there are two primary legal concepts that drive this proposal: First, the science behind what is being done does not pass legal muster, and Second, the process by which forced medication and treatments are judicially approved are legally faulty in that perjury is regularly committed to obtain these court orders and, in some cases, the standards themselves are unsanctioned by the U.S. Supreme Court.
Outline of Action Plan
A very important thing to be kept in mind is that the public has been so influenced by the Pharmaceutical Industry's public relations campaign as supported by "mainstream psychiatry" and that the current legal system for those threatened with forced treatment is such a "Catch-22" system, that progress probably needs to be incremental. To illustrate this point, the advent of the World Wide Web has allowed virtually anyone to self-publish their views (like this article) and there are a large number of web pages and web sites devoted to describing, analyzing and exposing these psychiatric-legal abuses. In addition, there is a growing chorus of disaffected psychiatrists and other professionals who are decrying the current situation. However, the effects of these seem heretofore negligible. A large part of the reason for this is probably the "preaching to the choir" aspect of what is happening in that the people visiting these websites and reading these books are largely already on the same side of the issue. Probably more than that, though, is the well organized public relations efforts on the other side that has the ear of the mainstream media. In order to impact the public's perception, a carefully thought out and well-executed information effort is likely to be required. With respect to the Catch-22 aspect of the legal system, as the Force of Law article shows, the conventional wisdom is that the United States Supreme Court has ruled not only that federal rights in this area are determined under state law (an interesting concept), but that the forced treatment is permitted unless it is "a substantial departure from accepted professional judgment, practice or standards." See, Youngberg v. Romeo and Mills v. Rogers. The thesis here is that "accepted professional judgment, practice or standards" is itself unsound. However, under the Supreme Court's analysis, that it is "accepted" is sufficient, regardless of whether what is accepted is valid. Catch-22 (but susceptible to correction). One of the accepted professional practices is if someone doesn't want the medication, that in itself is proof that the person is incompetent to make the decision. Catch-22. So, in order to turn this around, the psychiatric profession's legal edifice must be taken down brick by brick because a full frontal assault on the fortress is not likely to be successful at this time. The same is true on the public education front.
The inadequate representation of people faced with forced treatment has been pointed out numerous times. The problem, however, is not likely to be because the people involved are incompetent or unmotivated, but because they are not allowed the resources and tools to do the job adequately. For example, in Alaska, where I practice law, there is a lone public defender assigned to represent all the consumers in all of the commitment and forced medication hearings (unless there is a conflict of interest due to representing other clients), which amounts to over 20 per week. This alone precludes effective representation. There is no funding for experts, nor even for depositions (even if she had the time to do them). And, as a stark illustration that the powers that be don't really want effective representation, not a single reported case can be found interpreting the Alaska involuntary commitment and forced medication statutes. It is only through careful preparation and presentation of the cases and then pursuing appeals can what is happening at the trial or hearing proceedings be corrected.
Lack of Science Behind the DSM IV
As is apparent from the cases mentioned, the courts currently accept that psychiatry's diagnostic system is scientifically valid. It is my impression that this is not true to the extent that it reliably and consistently diagnoses people and that a rigorous review will so demonstrate. To the extent that it can be shown the DSM-IV is invalid, it technically defeats the case for forced treatment, because every formulation of the right to forcibly medicate or involuntarily commit someone starts with the requirement that the person be found to be "mentally ill." If the whole system for determining someone to be mentally ill is faulty, then logically they can't get to first base on this prerequisite. As a practical matter, however, this usually won't be enough.
Under evidence rules, an expert is not supposed to be allowed to testify as an expert unless the science is proven. It seems that there have been a number of cases recently where the consumer's attorney has attempted to follow this approach to get "expert testimony" thrown out, but have been unsuccessful. There needs to be a research debunking roadmap that helps attorneys do this. And for the right cases, the adverse opinions should be appealed.
However, care needs to be taken with this approach because normal people and judges believe through their own experience that they know some people are mentally ill (heuristic knowledge) and thus, to argue that there is no such thing as mental illness will cause one to lose credibility. What needs to be done here is to establish the extreme arbitrariness and invalidity of the classification system and throw doubts on the validity of any particular diagnosis. One factor that ought to help is it is my experience that any "consumer" who has been around the system for any length of time will normally have four or five or even more different diagnoses. It should therefore be possible to cast doubt on the idea that an authoritative diagnoses of mental illness has been made when the "experts" can't come to a uniform conclusion as to which exact disorder the person has.
Improper Use of Psychiatric Medications.
One of the great Catch 22's of the system is the issue of "informed consent." The rule basically is that no one can be forced to take medication if they make a competent decision to refuse the medication. However, the person's refusal to take the medication (or denial that he or she is mentally ill) is cited by the psychiatrist as proof that the person is incompetent to make the decision. The psychiatrists normally seriously downplay, to the point of plain lying, the dangerousness, harmfulness and other side effects of these drugs (to the extent they even know them). Exposing their mendacity (not being truthful) and ignorance should disqualify them as expert witnesses. The reality will probably be that, at best, their credibility will be weakened. To be a bit specific, it is my impression that these drugs are used and the forced medication regimes have never been shown to be effective or safe. For example, I think that with Xanax, no clinical trials went for more than 8 weeks and that all of the benefits disappeared after the first four weeks, yet it is prescribed for long term use. Equally important, Xanax (as most of the drugs), when withdrawn cause serious withdrawal symptoms, including psychosis. Similarly, most of the drugs have been shown to cause psychosis. The prescribing docs tend to ignore this information or are not aware of it. If they ignore the information, more specifically if they are not taking it into consideration when deciding the appropriate course of treatment, they are violating the law, while if they are ignorant of it, they are not much of an expert.
A drug by drug analysis of psychiatric medications should be undertaken, including analysis of the various studies involving the drugs. In other words, Dr. Breggin cites many studies for his conclusions in his books as does Bob Whitaker, in the incredibly good Mad in America: Bad Science, Bad Medicine, and the Enduring Mistreatment of the Mentally Ill. These studies should be pulled, analyzed and lines of questioning developed to discredit the psychiatrist's testimony. For example, experience teaches that the docs do not even remotely disclose the side effects of the drugs, nor do they prescribe them in accordance with their approvals.
Psychiatrists' inability to predict violence.
The other pillar to an involuntary commitment order is that the person be a danger to himself or others. It is my impression that the research shows neither psychiatrists nor anyone else can reliably predict violence or suicide. To the extent that this can be shown, it technically defeats the ability to commit someone.
???Lack of Evidence to Support the Biologic Model of Mental Illness???
Mainstream psychiatry has been very successful in convincing the public and courts that mental illness is biological. The implication of this is that medical intervention (i.e., medicine) can fix this. However, experience from talking with consumers and from research suggests that this is at least largely not the case. Moreover, everything I have read suggests that there is no evidence for this, at least as to Schizophrenia. See e.g., Psychiatric Myths. And if the problem is not biologic, then a physical treatment becomes much less compelling. The question marks indicate that proving this may not be necessary to prevailing on cases and may unnecessarily create credibility questions about the case.
It seems to me that attorneys attempting to protect people's rights against forced treatment could benefit greatly from a "how to" manual. Areas that the manual can/should address include:
Legal Resources
- Mental Disability Law: Civil and Criminal, Michael Perlin
- Brief/Legal Research Bank
- Expert Report Bank (i.e., in affidavit form, which can be submitted as testimony)
Deposition Template
My experience is almost completely limited to Alaska, but I suspect it is true elsewhere that depositions before a forced medication or involuntary commitment hearing is rare, if not unheard of. However, it seems to me that where available (and if not, its availability should be pushed), taking the deposition of the psychiatrist to be called on to support the forced treatment is essential for the same reasons that it is essential in any other serious civil litigation. If not more so because experience teaches that the psychiatrists' bases for their opinions can be very fluid and thus it is important to get them nailed down on exactly what it is that creates the specific diagnosis of mental illness and the prediction of dangerousness. Or what exactly is the criteria being met to find someone is (in Alaska) "gravely disabled?"
Equally, if not more, important is to nail down the learned treatises and other authoritative works the expert witness (psychiatrist) is relying on to arrive at his or her expert opinion. And in fact what learned treatises and other authoritative works makes the expert an expert. Especially with respect to the former, the authority the psychiatrist says he or she relies on will quite probably not support the opinion.
In addition, the deposition is important to establish the setting relevant to the informed consent/competency to refuse the medication in that it appears fairly likely that one can lead the psychiatrist into either admitting that relevant information about the harm and dangerousness of the medications were not considered or even that that the psychiatrist is unaware of their rate and severity.
Cross Examination Template
A road map on how to attack "expert" psychiatric testimony should be included.
Identify Good Cases
However, to the extent that it can be done, as many people as possible should be represented as well as possible in these involuntary medication and commitment cases. The idea of the Manual is to provide a roadmap for how to attack these cases. And, of course, it is these cases from which the appeals will selected.
Identify and employ Expert Witnesses
Since these cases are built on the "expert" testimony of the psychiatrist, good, qualified expert witnesses are needed to rebut the this testimony. It is theoretically possible to do some through voir dire and cross examination, but that will be very difficult as the sole means. Therefore, a pool of good, qualified, credible expert witnesses will need to be identified, and then employed on specific cases. The obvious ones nationally are Dr. Breggin and Dr. Mosher and the psychiatrist authors of other books and criticisms of the existing regime. For purely financial reasons, it will be good if local psychiatrists can be found as well.
Pursue Selective Appeals
The best cases to go up on appeal will have good facts (i.e., egregious conduct and clear violations of the standards) with clearly erroneous court rulings. The closer the cases going up meet this profile, the likelier it is that good law will be developed. The judges at the trial/hearing level have so "bought into" the current system that it will be extremely difficult to get them to look at the testimony objectively without being forced to through appeals. In other words, if in one of the 20 cases that a judge is going to hold that week on forced medication is a full-blown attack on the science that is suggested here, will the judge accept this when the clear implication is it was also wrong for every one of the 19 other times he ordered medication be forcibly administered defendants/respondents that week? Probably not. Although, hopefully, this will change over time. In addition, as set forth in the Force of Law article, the trial/hearing level is basically a "wink and nod" approach to the legal requirements for issuing the orders. Maybe this view is naive, but appellate courts are much more likely to take compliance with the set standards and rules seriously.
Public Education Campaign
The legal effort might be considered a walk in the park compared to the difficulty of effecting public opinion in the face of the millions/billions of dollars being spent by the pharmaceutical companies and the "learned' pronouncements of the psychiatrists. Having good, even excellent, help in the public relations department, will be invaluable. However, there are some principles to be considered. First, there should be a group of people -- Recovered Consumers and Psychiatrists -- who can speak to the issue whenever something comes up in the media. At the risk of offending the many super people that should be on the list, but are not because this list is just illustrative, really excellent Recovered Consumers are Dan Fisher, M.D., Judi Chamberlin, Susan Rogers, and Laurie Ahern. It is important that the people doing this look mainstream and professional and that the message is perceived as credible. Again, the experts are people like Dr. Peter Breggin and Dr. Loren Mosher (it is unclear whether Dr. Szasz's message, while essentially correct, fits the bill of being credible to the public). Basically, the public education campaign consists of not only being in the media's face every time an issue comes up, but to be constantly working with them to develop stories about what we are trying to get known. We want them to automatically call us when something comes up to get our side. These are really hard things, because the issue most often comes up when some sensationally terrible crime is committed by someone diagnosed as mentally ill (and having stopped their medication). It is essential that the effort be constant and ongoing and not just when sensational events flare. There should be "exposés" on the effect of these drugs. There should be "investigations" behind the science and (hopefully) scandals over the pharmaceutical companies' behavior. These are developed through working with the media.
The Necessity of Alternatives
Just as it is deemed futile to make any meaningful changes through court actions without also fighting the battle of public opinion, unless there are alternatives to psychiatric drugging available, it will be virtually impossible to make any significant progress. There are some alternative programs, but many more are needed. Two programs that are trying to get open are Soteria New England and Soteria-Alaska, both of which are based on Dr. Loren Mosher's Soteria House program that proved many people diagnosed with schizophrenia can recover to lead full lives if they are allowed the chance to get through their crisis without being drugged.
First, I know the opinions here will not be shared by everyone. That's okay and I'm certainly not locked into any specific organizational structure. In addition, more than one organization can (and hopefully will) participate.
In my opinion, this effort should be directed by Recovered Consumers/Surviviors/Ex-Patients (Non-Consumers to be eagerly welcomed in advisory and supporting capacities). While the current protection and advocacy programs are no doubt doing what they think is right, to me at least, there is more than a little "fiddling while Rome burns" aspect of focusing so much on discrimination and benefits when hundreds of thousands of people are being illegally subjected to permanently brain damaging treatments. (The other big issue in my view, which is not being addressed here, is the wholesale jailing of people because they have a mental illness -- actually after having been made mentally ill by the drugs). A Recovered Consumer-run program would hopefully keep the focus on track and on the big issues. Whether Recovered Consumer directed or not, selection of the people to direct the effort is the single most important part of making this work.
Realistically, I think the effort needs to be privately funded with substantial augmentation by pro bono attorneys and other volunteers. Everyone who wants to can contribute in some way. However, I think that it is imperative that no funds be taken from local, state or the federal government ("Gummint") I don't think it is realistic to think that the Gummint is going to tolerate paying for a massive assault on its processes for subjecting people to these treatments. In addition to no Gummint money, it should go without saying that no pharmaceutical money can be permitted into this Project. It also seems quite possible that a good organization of volunteers can be recruited and a pretty serious effort can be mounted without a lot of money for staff. In fact, I think it can get off the ground right now with no money at all through volunteer efforts and in-kind donations. The initial response to this Call to Action has been gratifying in that respect. Think of a legal version of the Gesundheit Institute. The Manual is intended to allow individual lawyers to step into one of these proceedings with a lot of ammunition and there is a lot of potential for participating by lawyers acting for free in the public interest (pro bono). The Project can also help line up expert witnesses, public speakers, media contacts, etc. Volunteers, with direction, can help put together the scientific evidence necessary to discredit the current system in court.
Another potential source of help, is law students. For example, a new program at Harvard Law School, called JustAdvocates has been established as: "The resource for law students and young lawyers who want to be more than just advocates, they want to be JUST advocates."
Money does have to be obtained for expert witness fees I think (don't ask). The Civil Rights Movement of the 1960's was won with volunteers (including demonstrators), not paid staff. There does need to be a basic infrastructure of paid staff and, of course, people have to make a living, but the excitement and results generated by committed volunteers can not be duplicated. When I evaluate political campaigns, for example, I always look to see which ones have those volunteers, because those are the ones to watch. On the other hand, money is necessary and there will be a need to pay for some infrastructure and for some solid professional expertise.
The bottom line is how can anyone who knows what is going on, not do their part to try and stop it?
The Law Project for Psychiatric Rights' Certificate of Incorporation was received November 12, 2002. The organizational meeting was held November 12th and the application for Tax Exempt Status under §(501(c)(3) of the Internal Revenue Code was submitted December 2nd. The Advance Ruling granting Tax Exempt Status under §(501(c)(3) of the Internal Revenue Code was granted April 1, 2003. This non-profit can try to mount its own effort, join in with other organizations in a coordinated effort, or is potentially available to be the vehicle to implement this Call to Action on a larger (i.e., National) scale.
Copyright © 2002-2004 by Jim Gottstein All Rights Reserved