The Courts’ Potential
Role in Transforming Mental Health Care in Alaska
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2005 Mental Health Consumer
& Family Leadership Conference |
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April 13, 2005 |
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By James B. (Jim) Gottstein,
Esq. |
Objectives
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Sense of the Courts’ Potential
Role in Transformation of the Mental Health System Towards Recovery |
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Understanding of Possible Types
of Court Action. |
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Recognition that Courts Can
Only Be Part of Solution |
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Discussion |
Litigation Can Cause
Great System Change
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Desegregation Litigation |
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In Alaska: |
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Molly Hootch (Education) |
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Cleary (Prisoners’ Rights) |
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Weiss (Mental Health Trust) |
Types of Legal Remedies
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Precedent – “This is the Law” |
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Injunctions – “You Are Ordered
to . . .” |
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Declaratory Judgment – “Your
Rights Are” |
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Damages – $$$$ |
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Class Actions – Really for mass
torts |
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Lawyers Make Out/Most Class
Members Don’t |
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MH Trust as Class Action was a
Mistake |
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42 USC §1983 – Liability (fed
ct) for violation of civil rights |
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Illegal Aspects of the
Alaska Mental Health System
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Commitment |
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Forced Drugging |
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Civil |
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Prison |
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Informed Consent |
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“Tying” Services &
Entitlements |
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“Meaningful Involvement in
Grantee Agencies” |
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Treatment Planning |
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AMC Title 21
(Quasi-Institutional Housing) |
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Others? (suggestions)
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Gender Choice for Intimate Care
Staff? |
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AS 47.30.840 Rights?? |
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These Illegalities Can
Hinder Recovery (worsen prognosis)
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Forced Drugging |
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Informed Consent Lack of Effective Alternatives |
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Retraumatizing Victims of Abuse |
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Lack of Housing |
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Civil Commitment
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Illegalities |
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Less Restrictive Alternative |
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Dangerousness |
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Gravely Disabled |
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Perjury |
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Inadequate Representation? |
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Solutions |
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Strategic
Litigation/Negotiation |
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Alternatives |
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Good Representation |
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42 USC §1983 Action |
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Forced Drugging (Civil)
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Illegalities |
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Best Interests |
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Less Restrictive Alternative |
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Perjury |
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Inadequate Representation? |
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Solutions |
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Strategic
Litigation/Negotiation |
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Alternatives |
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Good Representation |
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Guardianships? |
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42 USC §1983 Action |
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PsychRights’ Forced
Drugging Alaska Litigation Strategy
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Negotiations have Failed |
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Forced Drugging -- Myers Case |
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Least Restrictive Alternative? |
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Soteria-Alaska in Wings |
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Sue to enforce if get Ruling |
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Potentially 42 USC §1983 |
Forced Drugging (Prison)
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Illegalities (Bavilla Case) |
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Not Adversarial |
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Not Allow Confrontation |
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Not Allow Presentation |
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Not Unbiased Decision Maker |
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Insufficient Notice |
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Not Allow representation? |
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Sell criteria? |
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Sufficient state interests,
necessary, achieve state interests, medically appropriate, least intrusive
means, court decide |
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Solutions |
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New Case |
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Alternatives |
Informed Consent under AS
47.30.837(d)(2) (Inpatient)
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All information that is
material to the patient's decision to give or withhold consent, including: |
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an explanation of the patient's
diagnosis and prognosis, or their predominant symptoms, with and without the
medication; |
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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; |
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a review of the patient's
history, including medication history and previous side effects from
medication; |
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an explanation of interactions
with other drugs, including over-the-counter drugs, street drugs, and
alcohol; and |
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information about alternative
treatments and their risks, side effects, and benefits, including the risks
of nontreatment. |
Informed Consent
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Illegalities |
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Prognosis |
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Efficacy |
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Toxicity |
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Alternatives |
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Battery |
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Solution |
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Find a Plaintiff |
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Tell the Truth |
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Alternatives |
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ACMHS?? |
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CHOICES in the Wings |
“Tying” Services &
Entitlements
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Illegalities |
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All from us |
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Meds or nothing |
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Meds or no housing |
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Meds or hospital |
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Meds or jail |
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Solutions |
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Litigation? |
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Independent Case Management? |
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Alternatives |
“Meaningful Involvement
in Grantee Agencies”
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Illegalities |
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Sufficient consumer and family
membership on Board of Directors for meaningful input |
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Grant Violation |
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Solutions |
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Litigation? |
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Get in Regulations? |
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Treatment Planning
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Illegalities |
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Lack of Involvement in
Treatment Plan |
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Violation of Federal &
State law? |
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Grant Violation |
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Solutions |
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Litigation? |
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Alternatives |
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AMC Title 21 (Quasi
Institutional Housing)
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Illegality |
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Discriminatory |
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Solution |
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Abolish |
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Gender Choice For
Intimate Care
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Illegality |
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Right to choose? |
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Solution |
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Right to Choose |
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Legislation |
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Litigation |
AS 47.30.825 Rights
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Illegality |
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Go down list |
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Solution |
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Criminal Charges under AS
47.30.835? |
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Litigation |
Bringing Legal Pressure
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PsychRights -- Mission is Forced Drugging |
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Pro Bono Recruitment |
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Set Disability Law Center
Agenda |
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PAIMI Council |
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Board of Directors |
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Others? |
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Consumers Counsel type of
program?? |
Discussion