For all people who
oppose forced psychiatric drugging a major legal victory recently occurred in
the highest court in the state of Alaska. In a resounding affirmation of
personal liberty, the Alaska Supreme Court issued a decision in the case of
Myers v Alaska Psychiatric Institute and found Alaska's forced drugging regime
to be unconstitutional.
One of the drugs
that the institute tried to force on the plaintiff was Zyprexa and, from here
on in, the state cannot force people to take Zyprexa, or any other psychiatric
drug, without first proving it to be in the patient's best interests and that
there are no less restrictive alternatives available. The ruling is specific to
the least intrusive alternative to forced psychiatric drugging," says Jim
Gottstein, the triumphant attorney in the case, "this decision has the
potential to change the face of current psychiatric practice, dramatically
improving the lives of people who now find themselves at the wrong end of a
acknowledges that the ruling will effect drug company profits. "The issue
of Big Pharma profits is a big one, of course," he says, "and the
Myers decision is perhaps most relevant where it states, 'a valid debate exists
in the medical/psychiatric community as to the safety and effectiveness of the
judicial confirmation," he explains, "that the safety and efficacy of
these psychiatric drugs has not really been established and can be used to
support that contention."
importantly in my mind," Mr. Gottstein continued, "is that if the
Myers stricture that people can't be forced to take these unwanted drugs if
there are less restrictive alternatives results in these non-drug approaches
being used, that will directly cut down on their use. "
ruling that I think can be used to benefit other people who are faced with
forced drugging," he advises, "is that under the Myers decision the
state can't force drug people if there is a less restrictive alternative."
"This can be
used to require that such alternatives be supported," he added.
Supreme Court ruling is only binding in Alaska," says patient advocate,
Vince Boem, "the ruling can be cited as persuasive authority in other
states, and the legal theories involved can serve as a road map for attorneys
arguing similar cases."
Faith Myers, the
plaintiff in the case, said of the decision, "It makes all of my suffering
that some people find psychiatric drugs helpful, Mr. Gottstein said he pursued
this case because, in addition to the drugs' serious physical health risks, he
is concerned about the rights of those who find the drugs both unhelpful and
field of medicine allows this sort of forced treatment," he points out.
�For people who
want to try non-drug approaches," he explains, "the research is very
clear that many will have much better long-term outcomes, including complete
recovery after being diagnosed with serious mental illness."
restores the rights of those people to pursue that potential," he states.
course," he says, "there are many people who see psychiatrists and
voluntarily, even eagerly, take psychiatric medications."
And he "has
absolutely no complaint about this."
It is the
unwarranted forced treatment that he objects to, "using the force of law
(court orders) to compel people to submit to unwarranted psychiatric treatments
they do not want," he says.
Mr. Gottstein is
speaking at the International Center for the Study of Psychiatry and
Psychology's annual conference being held October 7-9 in Washington, DC, on
Health and the Law."
involuntarily committed to the Alaska Psychiatric Institute, Ms.. Meyers
appealed a superior court order approving the administration of psychotropic
drugs by the hospital. She argued that the statutes relied on in approving the
medication violated the Alaska Constitution�s guarantees of privacy and
The Alaska Supreme
Court agreed. "In keeping with most state courts that have addressed the
issue," it said, "we hold that, in the absence of emergency, a court
may not authorize the state to administer psychotropic drugs to a
non-consenting mental patient unless the court determines that the medication
is in the best interests of the patient and that no less intrusive alternative
treatment is available."
The state high
court noted the trial court's concern that the statute does not allow the court
to consider the problems with the drugs, even though "a valid debate
exists in the medical/psychiatric community as to the safety and effectiveness
of the proposed treatment plan."
With the Supreme
Court's decision, trial courts are not only allowed to consider, they are
required to consider the safety and effectiveness of the medications in
deciding whether the proposed drugging is in the patient's best interest.
specifically points out that Alaska statutes require a hospital to honor a
patient's previously expressed desires regarding psychiatric medications.
Ms.. Myers has
suffered with mental illness for over 20 years and her symptoms have at times
included paranoia, dizziness, and hallucinations. She has been hospitalized a
number of times and placed on psychotropic drugs in the past.
In 2001, she weaned
herself off psychotropic drugs, believing that they actually worsened her
condition and since then, has described herself as an advocate for the mentally
In February 2003,
as a result of concerns of her daughter and neighbors, Ms. Myers was
involuntarily committed to the API. Once admitted, she refused to discuss
treatment options with institute doctors and the API filed a petition with the
court requesting authorization to medicate Ms. Myers without her consent.
She responded by
challenging the constitutionality of the statutory scheme that authorizes
facilities to administer psychotropic drugs without the patient�s consent and
argued that Alaska�s constitutional rights to liberty and privacy guarantee her
the �right to be free from unwanted mind-altering chemicals.�
She asserted that
the state can only abridge this right when necessary to advance a compelling
state interest and that, in her case, the API had �not come close� to making
this showing and had also failed to show that involuntary drugging was the
least restrictive means of advancing any state interest.
She also challenged
the statutory limitation on a court�s authority to modify or restrict a
treatment plan. The statute authorizing court-ordered administration of
psychotropic drugs provides that once a court determines that a patient is not
competent to provide informed consent, the court �shall approve the . . . proposed
use of psychotropic[s].�
On its face, the
Supreme Court noted, this provision does not seem to allow the court to
consider whether the treatment plan would actually be in the patient�s best
interest, leaving that decision completely to the treating facility�s
During Ms. Myers�s
hearing in the lower court, two API psychiatrists testified that administering
drugs to Ms. Myers would be appropriate.
Ms. Myers responded
with testimony from her own two expert psychiatrists. The first testified that
medication is not the only available treatment for schizophrenia. While
acknowledging that drugs played an accepted role in the �standard of care for treatment
of psychosis,� he testified 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
Ms. Myers�s second
expert specifically testified that Zyprexa, despite being �widely prescribed,�
was a �very dangerous� drug of �dubious efficacy.� He based his testimony on a
�methodological analysis� of the studies that led to the approval of Zyprexa by
At the end of the
hearing, the lower court found that Ms. Myers �lacked . . . insight into her
own condition� and did �not appreciate that she suffers from a mental
Although the court
noted that Ms. Myers understood the debate about the advisability of medication
and had articulated a �reasonable objection to the proposed medication,� the
court nonetheless ruled that she lacked the capacity to make informed decisions
regarding her treatment.
statutes as not allowing it to make a determination of Ms. Myers�s best
interests, the court did not consider her expert evidence on the point and
authorized the API to administer the drugs based on its own assessment of Ms.
Myers�s best interests.
The court did note
that it found Ms. Myers�s case �troubling,� so much so that it issued an
additional order addressing in detail the arguments presented by the parties in
pre-hearing briefs. In the order, the court found it troubling that Alaska�s
statutory scheme prevented it from considering the merits of API�s treatment
plan, or weighing the objections of Ms. Myers�s experts.
Because it believed
that the statute limited the court�s role �to deciding whether Ms.. Myers has
sufficient capacity to give informed consent,� the court felt constrained to
adhere to its meaning but emphasized that it found the limitation problematic
stating, "Where a patient, such as Ms.. Myers, has a history of undergoing
a medical treatment she found to be harmful, where she is found to lack
capacity to make her own medical decisions and a valid debate exists in the
medical/psychiatric community as to the safety and effectiveness of the
proposed treatment plan, it is troubling that the statutory scheme apparently
does not provide a mechanism for presenting scientific evidence challenging the
proposed treatment plan."
On appeal, Ms.
Meyers argued that the provisions governing authorization of treatment with
psychotropic medications violate the Alaska Constitution�s guarantees of
liberty and privacy and the state Supreme Court agreed.
view," the court wrote, "before a state may administer psychotropic
drugs to a non-consenting mentally ill patient in a non-emergency setting, an
independent judicial best interests determination is constitutionally necessary
to ensure that the proposed treatment is actually the least intrusive means of
protecting the patient."
In reaching its
decision, the Court noted that Alaska law recognizes and addresses a distinct
class of drugs called �psychotropic medications.�
psychotropic medication can have profound and lasting negative effects on a
patient�s mind and body," the court said, "Alaska�s statutory
provisions permitting nonconsensual treatment with psychotropic medications
implicate fundamental liberty and privacy interests."
The right to choose
or reject medical treatment, the court noted, finds its source in the
fundamental guarantees of liberty and privacy. "The constitution itself
requires courts, not physicians," the court noted, "to protect and
enforce these guarantees."
the court said, �affect the mind, behavior, intellectual functions, perception,
moods, and emotions� and are known to cause a number of potentially
devastating side effects.
aside," it stated, "the truly intrusive nature of psychotropic drugs
may be best understood by appreciating that they are literally intended to
alter the mind."
Under Alaska law,
when the state files its petition to authorize psychotropic medication, a
�visitor� must be appointed to assist the court when it considers the petition.
The visitor has a
duty to provide information on two issues: first, the visitor must evaluate the
patient�s present condition by administering a �capacity assessment�; second,
the visitor must conduct a search for any prior �expressed wishes of the
patient regarding medication.�
"The search for prior expressions regarding
medications," the court said, "includes both written and oral
must include documentation of any expressed wishes of the patient regarding
medication, including wishes expressed in a power of attorney, a living will,
an advance health care directive or oral statements in conversations with
relatives and friends that are significant persons in the patient�s life as
those conversations are remembered by the relatives and friends.
decision states that "if the information gathered and documented by the
visitor enables the court to find that the patient has expressed a prior
competent desire not to be medicated, then the court may not authorize
conclude," the Supreme Court wrote, "that the Alaska Constitution�s
guarantees of liberty and privacy require an independent judicial determination
of an incompetent mental patient�s best interests before the superior court may
authorize a facility like API to treat the patient with psychotropic
The court also said
that "in future non-emergency cases a court may not permit a treatment
facility to administer psychotropic drugs unless the court makes findings that
comply with all applicable statutory requirements and, in addition, expressly
finds by clear and convincing evidence that the proposed treatment is in the
patient�s best interests and that no less intrusive alternative is
A number of other
states have also ruled that the right to refuse psychotropic drugs is
fundamental. For instance, in Rogers v. Commissioner of the Department of
Mental Health, the Supreme Court of Massachusetts held that a committed mental
patient could not be forcibly drugged with anti-psychotics unless a court
determined both that he was incompetent and would have consented to the drugs
if he were competent.
emphasized that mentally ill patients have dignity and worth equal to other
individuals and said that a committed patient is entitled to an independent
judicial determination of whether the patient would have consented to receive
In Rivers v Katz,
the New York Court of Appeals found a person�s right to control his medical
treatment in state common law but went on to declare that �[t]his fundamental
common-law right is coextensive with the patient�s liberty interest protected
by the due process clause of our State Constitution."
In our system of a
free government, the court wrote, where notions of individual autonomy and free
choice are cherished, it is the individual who must have the final say in
decisions regarding medical treatment. If the court concludes that the patient
lacks the capacity to determine his own treatment, it stated, "The court
must determine whether the proposed treatment is narrowly tailored to give
substantive effect to the patient�s liberty interest, taking into consideration
all relevant circumstances, including the patient�s best interests, the
benefits to be gained from the treatment, the adverse side effects associated with
the treatment and any less intrusive alternative treatments."
Supreme Court reached a similar decision in Jarvis v Levine and ruled that the
constitutional guarantee of privacy �begins with protecting the integrity of
one�s own body and includes the right not to have it altered or invaded without
consent. Commitment to an institution does not eliminate this right. When
intrusive treatment is proposed, the �professional judgment� of medical
personnel insufficiently protects this basic human right.�
Most recently, the
Ohio Supreme Court ruled in Steele v. Hamilton County Community Mental Health
Board that the state could forcibly medicate a mental patient only after a
court had found, �by clear and convincing evidence, that (1) the patient does
not have the capacity to give or withhold informed consent regarding his/her
treatment, (2) it is in the patient�s best interest to take the medication,
i.e., the benefits of the medication outweigh the side effects, and (3) no less
intrusive treatment will be as effective in treating the mental illness.�
Given the nature
and potentially devastating impact of psychotropic medications, the court said
that "the right to refuse to take psychotropic drugs is fundamental."
This right, the
court said, must extend �equally to mentally ill persons,� so that the mentally
ill are not treated �as persons of lesser status or dignity because of their
for injured parties can be found at Lawyers and Settlements.com.
Evelyn Pringle is a columnist for OpEd News and
an investigative journalist focused on exposing corruption in government and