Involuntary Commitment and Medication in Alaska:

James B. (Jim) Gottstein, Esq.
Law Project for Psychiatric Rights

jim@psychrights.org
http://psychrights.org/

Topics

Constitutional Principles

Alaska Statutes

Current Practices

Current Legal Challenges

Constitutional Principles

Due Process (Also Alaska Right to Privacy)

To Justify Deprivation of Fundamental Rights

Must Further Compelling State Interest

Least Restrictive Alternative

Due Process

Art. 1 §7, Alaska Constitution

No person shall be deprived of life, liberty, or property, without due process of law. . . .

Hallmarks of Due Process

Meaningful Notice and Meaningful Opportunity to Respond.

Hamdi v. Rumsfeld, 542 U.S. 507, 124 S.Ct. 2633, 2648-9 (2004)

Involuntary Commitment and Medication Are Deprivations of Fundamental Rights

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)

When Involuntary Commitment Constitutionally Permissible

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).

When Forced Drugging Constitutionally Permissible?

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).

Alaska Statutes

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

AS 47.30.655 Purpose of major revision.

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.

AS 47.30.700 (Ex Parté)

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.

Definition of Gravely Disabled
(AS 47.30.915(7)

(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;

AS 47.30.705 Emergency detention for evaluation
(“POA” or “Police Officer Application”)

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.

AS 47.30.710 Examination.

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?

30-Day Commitment
AS 47.30.725 – .735

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.

30-Day Commitment
(Continued)

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

30-Day Commitment
(Continued)

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)

90-Day Commitment
(AS 47.30.740 -- .755)

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?

180-Day Commitments
(AS 47.30.770

Follows 90-Day

Successive 180 Days

30, 90 & 180 Day Facts May Not be Rebutted Except for Newly Discovered Evidence

Psychotropic Medication
(AS 47.30.836 -- .839)

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)

Involuntary Medication – Non Emergency (AS 47.30.839)

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

The Reality

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

Psychiatric Drugs at Least Doubling Chronically Mentally Ill

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

Voluntary Aspiration Unfulfilled

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

Coercion: Psychiatry Has Lost Its Way

“Therapeutic Alliance” Most Important Thing.

Involuntary Commitment and Forced Drugging Should be Exception and Hard to Obtain.

Meretricious Testimony

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.

Importance of Effective Attorney

"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)

Attorney Abdication

“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

Alaska Public Defender Agency

No Meaningful Defense Put On.

No Appeals Ever Taken.

Unclear on Patients’ Side.

Violation of Professional Ethics?

There Are Effective Non-Drug, Non-Coercive Alternatives

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

PsychRights in Alaska

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??

Suggested Reading

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


	James B. (Jim) Gottstein, Esq. Law Project for Psychiatric Rights
	jim@psychrights.org http://psychrights.org/


	Constitutional Principles
	Alaska Statutes
	Current Practices
	Current Legal Challenges


	Due Process (Also Alaska Right to Privacy)
	To Justify Deprivation of Fundamental Rights
		Must Further Compelling State Interest
		Least Restrictive Alternative


	Art. 1 §7, Alaska Constitution
	No person shall be deprived of life, liberty, or property, without due process of law. . . .


	Meaningful Notice and Meaningful Opportunity to Respond.
	Hamdi v. Rumsfeld, 542 U.S. 507, 124 S.Ct. 2633, 2648-9 (2004)


	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)


	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).


	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).


	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


	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.


	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.


	(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;


	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.


	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?


	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.


	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


	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)


	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?


	Follows 90-Day
	Successive 180 Days
	30, 90 & 180 Day Facts May Not be Rebutted Except for Newly Discovered Evidence


	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)


	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


	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


	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


	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


	“Therapeutic Alliance” Most Important Thing.
	Involuntary Commitment and Forced Drugging Should be Exception and Hard to Obtain.


		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.


	"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)


		“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


	No Meaningful Defense Put On.
	No Appeals Ever Taken.
	Unclear on Patients’ Side.
	Violation of Professional Ethics?


	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