Involuntary Commitment and Forced Psychiatric Drugging in the Trial Courts: Rights Violations as a Matter of Course

• Publication year: 2008

§ 25 Alaska L. Rev. 51. INVOLUNTARY COMMITMENT AND FORCED PSYCHIATRIC DRUGGING IN THE TRIAL COURTS: RIGHTS VIOLATIONS AS A MATTER OF COURSE

Alaska Law Review
Volume 25, No. 1, June 2008
Cited: 25 Alaska L. Rev. 51

INVOLUNTARY COMMITMENT AND FORCED PSYCHIATRIC DRUGGING IN THE TRIAL COURTS: RIGHTS VIOLATIONS AS A MATTER OF COURSE

JAMES B. (JIM) GOTTSTEIN ^[*]

I. INTRODUCTION

II. MYERS AND WETHERHORN

A. Myers v. Alaska Psychiatric Institute

B. Wetherhorn v. Alaska Psychiatric Institute

C. The Importance and Potential Impact of Myers and Wetherhorn

III. PSYCHIATRIC DRUGS ARE EFFECTIVE FOR FEWER PATIENTS AND ARE MORE HARMFUL THAN COMMONLY BELIEVED

A. Long-Term Effects of Neuroleptic Medications

B. Harmful Effects from Neuroleptic Medications

C. Atypical Neuroleptics Do Not Provide a Safer Alternative

D. Summary of Data on Neuroleptics

IV. UNITED STATES CONSTITUTIONAL RIGHTS WITH RESPECT TO INVOLUNTARY COMMITMENT V. ALASKA'S STATUTORY FRAMEWORK VI. CRITIQUE OF CERTAIN CURRENT PROCEDURES

A. Ex Parte Orders: Ministerial-Like Issuance of Ex Parte Orders Violates Due Process and the Express Mandate of the Alaska Statutes

B. Examination

C. Notice of Rights and Filing Petitions

D. List of Facts and Specific Behavior

E. List of Prospective Witnesses

F. Court-Ordered Administration of Medication

G. Right to Have the Hearings and Court Records Open to the Public

H. The Required Time Frame for Involuntary Commitment

I. Precludes Proper Processing by Masters

J. Probate Rule 2(b)(3)(D) Is Invalid

VII. PROPER EVIDENTIARY STANDARDS

A. Dangerousness

B. Capacity

C. Best Interests

VIII. OTHER IMPORTANT RIGHTS VIOLATIONS

A. Failure to Provide Available Less Intrusive Alternatives

B. Zealous Representation Should Be Provided to Psychiatric Respondents

IX. THE STATE OF ALASKA SHOULD EMBRACE THE CONCEPTS PRESENTED HERE

A. The Current Paradigm Increases Rather than Decreases Violence

B. A System that Maximizes Voluntariness Is Far More Successful

C. A System that Minimizes Force in Favor of Recovery Is Far Less Expensive Overall

X. CONCLUSION

FOOTNOTES

A commonly-held belief is that locking up and forcibly drugging people diagnosed with mental illness is in their best interests as well as society's as a whole. The truth is far different. Rather than protecting the public from harm, public safety is decreased. Rather than helping psychiatric respondents, many are greatly harmed. The evidence on this is clear. Constitutional, statutory, and judge-made law, if followed, would protect psychiatric respondents from being erroneously deprived of their freedom and right to decline psychiatric drugs.

However, lawyers representing psychiatric respondents, and judges hearing these cases uncritically reflect society's beliefs and do not engage in legitimate legal processes when conducting involuntarily commitment and forced drugging proceedings. By abandoning their core principle of zealous advocacy, lawyers representing psychiatric respondents interpose little, if any, defense and are not discovering and presenting to judges the evidence of the harm to their clients. By abandoning their core principle of being faithful to the law, judges have become instruments of oppression, rather than protectors of the rights of the downtrodden. While this Article focuses on Alaska, similar processes may be found in other United States' jurisdictions, with only the details differing.

I. INTRODUCTION

The Law Project for Psychiatric Rights ("PsychRights") ^[1] was founded to mount a strategic litigation campaign against forced psychiatric drugging and electroshock in the United States. ^[2] The impetus was the book Mad in America: Bad Science, Bad Medicine, and the Enduring Mistreatment of the Mentally Ill, by Robert Whitaker. ^[3] PsychRights recognized this as a possible roadmap for demonstrating to the courts that forced psychiatric drugging is not achieving its objectives but is, instead, inflicting massive amounts of harm.

It appears that prior to PsychRights's efforts, no involuntary commitment or forced drugging order was ever appealed in Alaska. The failure to prosecute any appeals and the lack of vigorous representation at the trial court level has led to virtually uncontested proceedings that can properly be characterized as shams. However, within a seven-month span, in appeals prosecuted by PsychRights, the Alaska Supreme Court issued two landmark opinions, Myers v. Alaska Psychiatric Institute ^[4] and Wetherhorn v. Alaska Psychiatric Institute. ^[5] Myers and Wetherhorn should force the State of Alaska to change how it administers its forced drugging program and should compel advocates of forced drugging patients to defend vigorously their client's constitutional and statutory rights. However, unless these decisions are honored in practice, psychiatric respondents' statutory and constitutional rights will continue to be violated.

This Article presents the scientific evidence and clinical realities not being submitted to the courts and weaves into this presentation ways in which psychiatric rights are being violated in Alaska -- in spite of Myers and Wetherhorn -- as a matter of course. Part II introduces Myers and Wetherhorn, focusing specifically on the Alaska Supreme Court's recognition of the limitations on the State's power to involuntarily commit and force drugs upon people found to be mentally ill. Part II also discusses the importance of these cases, both within and without the state of Alaska, but notes that they must be implemented in practice to be meaningful.

Part III presents the scientific evidence regarding the drugs most often given to those who have been committed, showing that the drugs are far less effective and far more harmful than commonly believed and that people who are not given them, or who manage to get off them, are far more likely to recover after being diagnosed with a serious mental illness. Within this scientific presentation, Part III describes less intrusive alternatives than forced drugging that produce far better outcomes.

Part IV and Part V provide necessary background material to understand the current rights violations in Alaska. Part IV gives an overview of United States Supreme Court cases establishing constitutional limits on involuntary commitment and court-ordered psychiatric drugging, including the requirements of proper procedures and evidentiary standards with respect to involuntary commitment. Part V outlines Alaska's statutory framework for involuntary commitment and court ordered psychiatric medication.

Part VI is a critique and description of ways in which current procedures, in Anchorage at least, systematically deprive people of their legal rights during involuntary commitment and forced drugging proceedings, and Part VII discusses ways in which proper evidentiary standards are not being followed. Part VIII presents two additional key areas that are systematically depriving people of their rights: the State of Alaska's failure to provide available less restrictive and less intrusive alternatives and the current lack of zealous representation, which, if corrected, would presumably result in people's rights being honored.

Finally, Part IX presents policy reasons why the State of Alaska should embrace a modality that minimizes force and coercion and provides the types of less restrictive and less intrusive alternatives that have been shown to dramatically improve outcomes. According to the data presented in Part III, this would result in at least halving the number of people diagnosed with mental illness on the disability rolls.

II. MYERS AND WETHERHORN A. Myers v. Alaska Psychiatric Institute

Section 47.30.839(g) of the Alaska Statutes provides, in part, that in a non-emergency, where a mental health treatment facility has petitioned for authorization to administer psychotropic drugs against a person's will, "[i]f the court determines that the patient is not competent to provide informed consent . . . the court shall approve the facility's proposed use of psychotropic medication." ^[6]

In her appeal from a superior court order approving the "nonconsensual administration of psychotropic drugs," Faith Myers asserted the State must prove, under the Alaska Constitution and United States Constitution, that the forced drugging was in her best interest and there were no less intrusive alternatives regardless of whether she was competent to decline the drugs or not. ^[7] She introduced compelling evidence regarding the harms and lack of effectiveness caused by the drugs that the Alaska Psychiatric Institute (API) was seeking to force upon her, as well as viable alternatives. ^[8] The Alaska Supreme Court described this evidence as follows:

The first [expert psychiatrist] testified that psychotropic medication is not the only viable treatment for schizophrenia. While acknowledging that psychotropic medications played an accepted role in the "standard of care for [the] treatment of psychosis," he advised that, because such drugs "have so many problems," they should be used "in as small a dose for as short a period of time as possible." Myers's second expert offered more specific testimony that one of the drugs that API proposed to administer to Myers -- Zyprexa -- was, despite being "widely prescribed," a "very dangerous" drug of "dubious efficacy." He based this testimony on a

...