The Courts’ Potential Role in Transforming Mental Health Care in

Alaska

2005 Mental Health Consumer & Family Leadership Conference

April 13, 2005By 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??

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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

Informed Consent Case Drafted

“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

Has this Been Has this Been Fixed?Fixed?

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