Evelyn Pringle: Zyprexa Takes Major Hit In Alaska

A major legal victory recently occurred in the highest court in the state of Alaska, for all people who oppose forced psychiatric drugging. 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 psychiatric drugs.

"By requiring 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 hypodermic needle.“

Mr Gottstein 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 [drugs]."

"This is 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."

"Most 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. "

"The key 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.

"While the 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 worthwhile."

While acknowledging 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 intolerable.

"No other 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."

"This decision restores the rights of those people to pursue that potential," he states.

"Of 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," he states.

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 " Mental Health and the Law."

After being involuntarily committed to the Alaska Psychiatric Institute, Ms Meyers appealed a superior court order approving the administration of psychotropic drugs by the hospital. She argues that the statutes relied on in approving the medication violated the Alaska Constitution’s guarantees of privacy and liberty.

The 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 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 medically/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.

The Court 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 ill.

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 physicians.

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 possible.”

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 the FDA.

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 disorder.”

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.

Construing the 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 argues that the provisions governing authorization of treatment with psychotropic medications violate the Alaska Constitution’s guarantees of liberty and privacy and the Supreme Court agrees.

"In our 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.”

"Because 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."

Psychotropic drugs, 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.

"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 statements."

The information 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.

The Court's 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 treatment."

"We 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 drugs."

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 available."

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 antipsychotics unless a court determined both that he was incompetent and would have consented to the drugs if he was competent.

The court 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 psychotropic drugs.

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 states:

"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."

The Minnesota 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, "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 illness.”

More information for injured parties can be found at Lawyers and Settlements.com

http://www.lawyersandsettlements.com/

Evelyn Pringle
evelyn.pringle@sbcglobal.net

(Evelyn Pringle is a columnist for OpEd News and an investigative journalist focused on exposing corruption in government and corporate America)

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