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- James B. (Jim) Gottstein, Esq.
Law Project for Psychiatric Rights
- jim@psychrights.org
http://psychrights.org/
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- Constitutional Principles
- Alaska Statutes
- Current Practices
- Current Legal Challenges
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- Due Process (Also Alaska Right to Privacy)
- To Justify Deprivation of Fundamental Rights
- Must Further Compelling State Interest
- Least Restrictive Alternative
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- Art. 1 §7, Alaska Constitution
- No person shall be deprived of life, liberty, or property, without due
process of law. . . .
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- Meaningful Notice and Meaningful Opportunity to Respond.
- Hamdi v. Rumsfeld, 542 U.S. 507, 124 S.Ct. 2633, 2648-9 (2004)
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- Involuntary Commitment: Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804,
60 L.Ed.2d 323 (1979)
- Involuntary Medication. Washington v. Harper, 494 U.S. 210, 110 S.Ct.
1028 (1990)
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- Confinement takes place pursuant to proper procedures and evidentiary
standards,
- Finding of "dangerousness either to one's self or to others,"
and
- Proof of dangerousness is "coupled ... with the proof of some
additional factor, such as a 'mental illness' or 'mental abnormality.'
- Kansas v. Crane, 534 U.S. 407, 409-10, 122 S.Ct. 867, 869 (2002).
- Incapable of surviving safely in freedom. Cooper v. Oklahoma, 517 U.S.
348, 116 S.Ct. 1373, 1383 (1996).
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- Court Must Conclude:
- Important governmental interests are at stake,
- Will significantly further those state interests - substantially
unlikely to have side effects that will interfere significantly (with
achieving state interest),
- Necessary to further those interests. The court must find that any
alternative, less intrusive treatments are unlikely to achieve
substantially the same results, and
- Medically appropriate, i.e., in the patient's best medical interest in
light of his medical condition. The specific kinds of drugs at issue may
matter here as elsewhere. Different kinds of antipsychotic drugs may
produce different side effects and enjoy different levels of success.
- Sell v. United States, 539 U.S. 166, 177-8, 123 S.Ct. 2174, 2183
(2003) (Competence to Stand Trial
Case).
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- Every reasonable opportunity to accept voluntary treatment before
involvement with the judicial system.
[????]
- “POA” – Police Officer Application
- Ex Parte
- 30 Day Commitment
- 90 Day Commitment
- 180 Day Commitments
- Involuntary Medication
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- Balance Rights & State’s
Interests; Principles
- Every reasonable opportunity to accept voluntary treatment before
involvement with the judicial system;
- Least restrictive alternative environment consistent with their
treatment needs;
- Treatment occur as promptly as possible as close to the individual's
home as possible;
- System of mental health community facilities and supports be available;
- Patients be informed of their rights and be informed of and allowed to
participate in their treatment program as much as possible;
- Persons who are mentally ill but not dangerous to others be committed
only if there is a reasonable expectation of improving their mental
condition.
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- Upon Petition of Any Adult Judge Conduct or Direct Screening
Investigation --mentally ill and, as a result gravely disabled or
present likelihood of serious harm to self or others.
- If so, without notice (ex parté), direct peace officer take into custody
and deliver to nearest appropriate facility for emergency examination or
treatment.
- No Exigency Requirement.
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- (7) "gravely disabled" means a condition in which a person as
a result of mental illness
- (A) is in danger of physical harm arising from such complete neglect of
basic needs for food, clothing, shelter, or personal safety as to render
serious accident, illness, or death highly probable if care by another
is not taken; or
- (B) will, if not treated, suffer or continue to suffer severe and
abnormal mental, emotional, or physical distress, and this distress is
associated with significant impairment of judgment, reason, or behavior
causing a substantial deterioration of the person's previous ability to
function independently;
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- Police Officer, Physician, or Clinical Psychologist having probable
cause to believe person is mentally ill and likely to cause serious harm
to self or others of such immediate nature that no time for ex parte may
cause person taken into custody and transported to nearest evaluation
facility.
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- Examine Person Brought in under POA or Ex Parté within 24 hours.
- If (1) mentally ill & gravely disabled or likelihood of serious harm
to self or others and (2) in need of treatment, file for Ex Parté.
- Query: What is exigency at this point justifying no notice?
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- Right to Be Free of Medication (but exceptions)
- Right to counsel
- Mentally ill and as a result is likely to cause harm to self or others
or is gravely disabled
- Note: “serious” not required; nor any explicit immediacy
- No Less Restrictive Alternative Has Accepted Patient.
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- Petition Must Include (AS 47.30.730):
- Gravely Disabled Person’s Condition Could be Improved
- Not Accepted Voluntary Treatment
- List Prospective Witnesses
- List the facts and specific behavior of the respondent supporting the
allegation
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- No Right to Jury Trial
- Setting Least Likely to be Harmful
- Elect Open or Closed Hearing
- Rules of Evidence and Civil Procedure Applied so as to Provide for the
Informal but Efficient Presentation of Evidence.
- To Have an Interpreter.
- To Remain Silent (but may be used against)
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- Same as 30-Day except:
- Can Demand Jury Trial
- Must Allege Serious Bodily Harm (but not find) or continue Gravely
Disabled
- 30 Day Findings of Fact May Not Be Rebutted, except for Newly Discovered
Evidence
- Going Voluntary Same as Commitment
- Right to Independent Expert
- Civil Rules & Evidence?
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- Follows 90-Day
- Successive 180 Days
- 30, 90 & 180 Day Facts May Not be Rebutted Except for Newly
Discovered Evidence
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- Must Be Competent to Give or Withhold Informed Consent (AS. 47.30.836)
- Informed Consent Defined in AS 47.30.837
- May Force In Emergency (AS 47.30.838)
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- Court Visitor Appointed to Administer Capacity Assessment Instrument and
Assist Court in Investigating Competence.
- Court Visitor Appointed, but Never Does Anything (Except in Myers)
- Hospital Must Follow Advance Directive Unless can Prove Incompetent When
Made (AS 47.30.839).
- API Can Not Equipped to Deal With This.
- May Force if Not Competent to Withhold Consent
- Hospital Can Drug any Way it Wants
- Challenged in Myers v. API
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- Psychiatric Drugs at Least Doubling Chronically Mentally Ill – Anatomy
of an Epidemic
- Voluntary is the Exception, Rather than the Rule.
- True Voluntary Extremely Rare
- Not Allowed at All from Rural Areas (See, Memo)
- You Can Choose to Go in but not Get Out.
- Legal Proceedings are a Sham
- Meretricious Testimony
- Enabled by Attorney Abdication
- No Actual Access to Independent Expert
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- Anatomy of an Epidemic, Ethical Human Psychology and Psychiatry, Volume
7, Number I: 23-35, Spring 2005
- 6 times Per Capita Disability increase for Mental Health since 1955
when Thorazine Introduced.
- “Atypicals” Doubled Already Elevated Mortality in Ireland Study.
- Ritalin, etc., Cause Psychotic Reactions in Significant Number of
People è DX
Serious MI
- SSRI Anti-Depressants Cause Psychotic Reactions in Significant Number
of People è DX
Serious MI
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- No Notice Before Picked Up & Dragged In.
- Involuntary Is Easiest for Hospital
- Know no legal defense
- Know they don’t have to be comforting enough for patient to want to be
there.
- You Can Sign In But Not Out
- Truly Voluntary Truly Rare
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- “Therapeutic Alliance” Most Important Thing.
- Involuntary Commitment and Forced Drugging Should be Exception and Hard
to Obtain.
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- Courts accept . . . testimonial dishonesty, . . . specifically where
witnesses, especially expert witnesses, show a "high propensity to
purposely distort their testimony in order to achieve desired
ends." . . .
- Experts frequently . . . and openly subvert statutory and case law
criteria that impose rigorous behavioral standards as predicates for
commitment . . .
- This combination . . . helps define a system in which (1)
dishonest testimony is often regularly (and unthinkingly) accepted; (2)
statutory and case law standards are frequently subverted; and (3)
insurmountable barriers are raised to insure that the allegedly
"therapeutically correct" social end is met . . .. In
short, the mental disability law system often deprives individuals of
liberty disingenuously and upon bases that have no relationship to case
law or to statutes.
- The ADA and Persons with Mental Disabilities: Can Sanist Attitudes
Be Undone? by Michael L. Perlin, Journal of Law and Health, 1993/1994, 8
JLHEALTH 15, 33-34.
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- "Empirical surveys consistently demonstrate that the quality of
counsel 'remains the single most
important factor in the disposition of involuntary civil commitment
cases." . . . Without such [adequate] counsel, it is likely that
there will be no meaningful counterbalance to the hospital's
"script," and the patient's articulated constitutional rights
will evaporate.
- Perlin, "And My Best Friend, My Doctor/Won't Even Say What It Is
I've Got": The Role And Significance Of Counsel In Right To Refuse
Treatment Cases, 42 San Diego Law Review 735 (2005)
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- “Traditionally, lawyers assigned to represent state hospital patients
have failed miserably in their mission”
- Houston Law Review January, 1991 Health Law Issue COMPETENCY,
DEINSTITUTIONALIZATION, AND HOMELESSNESS: A STORY OF MARGINALIZATION
Michael L. Perlin
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- No Meaningful Defense Put On.
- No Appeals Ever Taken.
- Unclear on Patients’ Side.
- Violation of Professional Ethics?
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- Soteria
- Being Done In Europe
- Italy Abolished Hospitals in 1970’s
- Michigan Psychotherapy Study
- Community Mental Health: A Practical Guide
- http://psychrights.org/Research/Digest/Effective/effective.htm
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- Myers
- Best Interests
- Least Restrictive Alternative
- Wetherhorn
- Illegality of “(B)” Prong Gravely Disabled Definition
- Ineffective Assistance of Counsel
- Invalidity of Commitment and Forced Drugging Orders
- Bavilla – Forced Drugging in Prison (Need New Case)
- Forthcoming Informed Consent Lawsuit
- Forthcoming 42 USC § 1983 Litigation??
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- The Hidden Prejudice: Mental Disability on Trial, (2000) by Michael L.
Perlin
- Mad in America: Bad Science, Bad Medicine and the Enduring Mistreatment
of the Mentally Ill (2001) by Robert Whitaker
- Rethinking Psychiatric Drugs: A Guide to Informed Consent, by Grace E.
Jackson, MD, (2005)
- Brain Disabling Treatments in Psychiatry: Drugs, Electroshock, and the
Role of the FDA (1997) by Peter Breggin, MD.
- Community Mental Health: A Practical Guide (1994) by Loren Mosher and
Lorenzo Burti
- Soteria: Through Madness to Deliverance, by Loren Mosher and Voyce
Hendrix with Deborah Fort (2004
- Psychotherapy of Schizophrenia: The Treatment of Choice (Jason Aronson,
1996), by Bertram P. Karon and Gary R. Vandenbos
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