The Courts’ Potential Role in Transforming Mental Health Care in Alaska
2005 Mental Health Consumer & Family Leadership Conference
April 13, 2005
By James B. (Jim) Gottstein, Esq.

Objectives
Sense of the Courts’ Potential Role in Transformation of the Mental Health System Towards Recovery
Understanding of Possible Types of Court Action.
Recognition that Courts Can Only Be Part of Solution
Discussion

Litigation Can Cause Great System Change
Desegregation Litigation
In Alaska:
Molly Hootch (Education)
Cleary (Prisoners’ Rights)
Weiss (Mental Health Trust)

Types of Legal Remedies
Precedent – “This is the Law”
Injunctions – “You Are Ordered to . . .”
Declaratory Judgment – “Your Rights Are”
Damages – $$$$
Class Actions – Really for mass torts
Lawyers Make Out/Most Class Members Don’t
MH Trust as Class Action was a Mistake
42 USC §1983 – Liability (fed ct) for violation of civil rights

Illegal Aspects of the Alaska Mental Health System
Commitment
Forced Drugging
Civil
Prison
Informed Consent
“Tying” Services & Entitlements
“Meaningful Involvement in Grantee Agencies”
Treatment Planning
AMC Title 21 (Quasi-Institutional Housing)

Others? (suggestions)
Gender Choice for Intimate Care Staff?
AS 47.30.840 Rights??
?
?
?
?

These Illegalities Can Hinder Recovery (worsen prognosis)
Forced Drugging
Informed Consent  Lack of Effective Alternatives
Retraumatizing Victims of Abuse
Lack of Housing

Civil Commitment
Illegalities
Less Restrictive Alternative
Dangerousness
Gravely Disabled
Perjury
Inadequate Representation?
Solutions
Strategic Litigation/Negotiation
Alternatives
Good Representation
42 USC §1983 Action

Forced Drugging (Civil)
Illegalities
Best Interests
Less Restrictive Alternative
Perjury
Inadequate Representation?
Solutions
Strategic Litigation/Negotiation
Alternatives
Good Representation
Guardianships?
42 USC §1983 Action

PsychRights’ Forced Drugging Alaska Litigation Strategy
Negotiations have Failed
Forced Drugging -- Myers Case
Least Restrictive Alternative?
Soteria-Alaska in Wings
Sue to enforce if get Ruling
Potentially 42 USC §1983

Forced Drugging (Prison)
Illegalities (Bavilla Case)
Not Adversarial
Not Allow Confrontation
Not Allow Presentation
Not Unbiased Decision Maker
Insufficient Notice
Not Allow representation?
 Sell criteria?
Sufficient state interests, necessary, achieve state interests, medically appropriate, least intrusive means, court decide
Solutions
New Case
Alternatives

Informed Consent under AS 47.30.837(d)(2) (Inpatient)
All information that is material to the patient's decision to give or withhold consent, including:
an explanation of the patient's diagnosis and prognosis, or their predominant symptoms, with and without the medication;
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;
a review of the patient's history, including medication history and previous side effects from medication;
an explanation of interactions with other drugs, including over-the-counter drugs, street drugs, and alcohol; and
information about alternative treatments and their risks, side effects, and benefits, including the risks of nontreatment.

Informed Consent
Illegalities
Prognosis
Efficacy
Toxicity
Alternatives
Battery
Solution
Find a Plaintiff
Tell the Truth
Alternatives
ACMHS??
CHOICES in the Wings

“Tying” Services & Entitlements
Illegalities
All from us
Meds or nothing
Meds or no housing
Meds or hospital
Meds or jail
Solutions
Litigation?
Independent Case Management?
Alternatives

“Meaningful Involvement in Grantee Agencies”
Illegalities
Sufficient consumer and family membership on Board of Directors for meaningful input
Grant Violation
Solutions
Litigation?
Get in Regulations?

Treatment Planning
Illegalities
Lack of Involvement in Treatment Plan
Violation of Federal & State law?
Grant Violation
Solutions
Litigation?
Alternatives

AMC Title 21 (Quasi Institutional Housing)
Illegality
Discriminatory
Solution
Abolish

Gender Choice For Intimate Care
 Illegality
Right to choose?
Solution
Right to Choose
Legislation
Litigation

AS 47.30.825 Rights
 Illegality
Go down list
Solution
Criminal Charges under AS 47.30.835?
Litigation

Bringing Legal Pressure
PsychRights  -- Mission is Forced Drugging
Pro Bono Recruitment
Set Disability Law Center Agenda
PAIMI Council
Board of Directors
Others?
Consumers Counsel type of program??

Discussion