The Illegality of Forced Drugging and Electroshock

Jim Gottstein, J.D.

March 21, 2012

Court ordered psychiatric drugging and electroshock is illegal when measured against the constitutional requirements for forcing someone to ingest drugs, or be subjected to electroshock, against their will.

Under the United States Constitution, if a right is considered “fundamental,” in order to infringe on that right, the government is (a) required to have a compelling interest (reason),  (b) the method chosen to further that interest must be reasonably assured to achieve its objective, and (c) the method must be narrowly tailored, meaning there cannot be a less restrictive or intrusive means of achieving the objective.  This was most recently articulated in 2003 by the United States Supreme Court in Lawrence v. Texas, as follows:

Our opinions applying the doctrine known as “substantive due process” hold that the Due Process Clause prohibits States from infringing fundamental liberty interests, unless the infringement is narrowly tailored to serve a compelling state interest.

Let’s apply these principles to forced drugging and electroshock.  In 2003 the United States Supreme Court  also decided Sell v. United States, in which the government wanted to force Dr. Sell, a dentist, to take neuroleptics, to ”restore” him to competence so he could stand trial for health care fraud.  The U.S. Supreme Court held such forced drugging permissible under the constitution only when the following conditions are met:

  1. The court must find that important governmental interests are at stake.
  2. The court must conclude that involuntary medication will significantly further those concomitant state interests.
  3. The court must conclude that involuntary medication is necessary to further those interests. The court must find that any alternative, less intrusive treatments are unlikely to achieve substantially the same results.
  4. The court must conclude that administration of the drugs is medically appropriate, i.e., in the patient’s best medical interest in light of his medical condition.  (emphasis in original).

This is classic analysis of a fundamental right under the due process clause.  I will address each of these requirements in turn.

 Governmental Interests

What is the government’s important interest in forcing someone to be psychiatrically drugged or electroshocked against their will?   It depends.  (The answer to all legal questions)   More specifically, there are various situations in which the issue comes up and the government’s interests are different in each one.

Standing Trial On Criminal Charges

In Sell, the government’s interest was to restore Dr. Sell to competency so that he could be put on trial for healthcare fraud.   To be competent to stand trial for a crime, a defendant must be able to understand the nature of the charges and be able to assist his or her lawyer.   Clearly, being able to put someone on trial for murder is an important enough governmental interest.   However, is putting someone on trial for “illegal use of telephone,” such as calling 911repeatedly, an important enough interest to force someone to take psychotropic drugs against their will?   I don’t think so.

 Civil Commitment

Most of the time we think of forced psychiatric drugging and electroshock in the context of civil commitment.   In this setting, there are two justifications (governmental interests).  The first is known as Parens Patriae, which is Latin for ”parent of the nation,” and means the government is stepping in to act as a parent for someone who cannot take care of him or herself.  In other words, “We are from the government and are here to help you.”    In order for the government to be able to assert this right, it has to prove the person is incompetent to decide for him or herself.  These determinations, in themselves, are illegitimate and could be the subject of an entire article, in itself.  However, I will limit this to a couple of comments.

First, one can look at the transcript of Faith Myers’ testimony (pp 0123-0148)) to decide for oneself whether she was incompetent to decline the medication and then look at the judge’s decision (pp  12-14).  To me, the judge’s decision that Faith was incompetent to decline the medication was a travesty.

Second, I will note that the reasoning to find someone incompetent to decline the medication or electroshock, is often circular in that when a person says they don’t want the psych drug(s) or electroshock because it doesn’t work and/or is harmful, that is cited as proof the person is delusional and incompetent.  In the Myers case, the psychiatrist testified in a deposition (pp 39 – 43) that if someone agrees to to take the medication, he decides the person is competent and if not, the person is incompetent.

In fact circular reasoning is enshrined in Alaska Statutes 47.30.837(d)(1)(B), where it provides, “denial of a significantly disabling disorder or impairment, when faced with substantial evidence of its existence, constitutes evidence that the patient lacks the capability to make mental health treatment decisions.”

The second justification for forced drugging and electroshock in the civil commitment context is safety, i.e., that the person must be drugged for their own safety or those of others.  This is known as the “Police Power” justification.  Forced drugging under this justification also tends to be an illegitimate process.  First, the safety risk must be extreme.  For example, under Alaska Statutes 47.30.838 (a)(1), emergency forced drugging is only allowed if, “there is a crisis situation, or an impending crisis situation, that requires immediate use of the medication to preserve the life of, or prevent significant physical harm, to the patient or another person.”

In one of the Bill Bigley cases, I took the deposition (PDf pages 34-37) of the hospital psychiatrist about her use of “emergency” medication, which makes clear that (a) she didn’t know what the legal requirements were and (b) Mr. Bigley was being drugged for non-existent emergencies.

Whether the government has a sufficiently important interest in most civil commitment cases is certainly subject to challenge in many cases.

Prison

Another common setting for forced psychiatric drugging is people convicted of crimes and in prison.  Being convicted of a crime and in prison as opposed to being charged with a crime and in jail is a huge difference, legally.  People in prison have the least legal protection.  Thus, with respect to forced psychiatric drugging in prison, the United States Supreme Court held in Washington v. Harper  that the government doesn’t have to show an important or compelling interest, just that it is ”reasonably related to legitimate penological interests,” holding :

[G]iven the requirements of the prison environment, the Due Process Clause permits the State to treat a prison inmate who has a serious mental illness with antipsychotic drugs against his will, if the inmate is dangerous to himself or others and the treatment is in the inmate’s medical interest.

Note, that even here, in order to be constitutional the court ordered drugging must be in the person’s medical interest.

OUTPATIENT COMMITMENT

Outpatient Commitment, where people are court ordered to take psychiatric drugs in the community has taken what I consider a bizarre turn.  In 2004, the high court of New York held in the K.L. case that a finding of incompetence was not required, nor was the fundamental right to be free of forced psychiatric drugging involved, because the outpatient commitment statute did not authorize forced drugging, saying “it  simply triggers heightened scrutiny on the part of the physician, who must then determine whether the patient may be in need of involuntary hospitalization.”  In other words, the New York high court held that an [outpatient commitment] order mandating a person take psychiatric drugs does not really compel the person to take psychiatric drugs.  This is a classic example of a court decision being divorced from reality.

There is, however, a 2008 New Mexico case, Protection and Advocacy System v. City of Albuquerque, that recognizes the delusional (my word) nature of the New York high court’s holding that New York’s outpatient commitment law does not involve court ordered medication:

‘R]egardless of whether there are sanctions in the Ordinance for failure to comply with court-ordered treatment, the coercive nature of a court order requiring treatment would clearly allow an act contrary to the statute’s mandate that an individual’s consent be obtained as long as the individual has capacity.”

However, since the City of Albuquerque  case involved whether the city’s ordinance conflicted with state statute and was therefore invalid, the issue was not front and center.

In any event, with respect to the governmental interests involved, in K.L. the New York high court held the police power justification applied as follows:

Inasmuch as an [outpatient commitment] order requires a specific finding by clear and convincing evidence that the patient is in need of assisted outpatient treatment in order to prevent a relapse or deterioration which would be likely to result in serious harm to self or others, the state’s police power justifies the minimal restriction on the right to refuse treatment inherent in an order that the patient comply as directed.

 The court also held the parens patriae justification applied as follows:

[T]he state’s parens patriae interest in providing care to its citizens who are unable to care for themselves because of mental illness is properly invoked since an AOT order requires findings that the patient is unlikely to survive safely in the community without supervision;  the patient has a history of lack of compliance with treatment that has either necessitated hospitalization or resulted in acts of serious violent behavior or threats of, or attempts at, serious physical harm;  the patient is unlikely to voluntarily participate in the recommended treatment  plan;  the patient is in need of assisted outpatient treatment in order to prevent a relapse or deterioration which would be likely to result in serious harm to the patient or others;  and it is likely that the patient will benefit from [outpatient commitment].

There are many aspects of this that could be discussed at length, but I will just make two short comments.  The first is that the court held the patient must benefit from the drugging, which is highly dubious, at best.   The second, more over-arching, is that many of the requirements for obtaining an outpatient commitment order in New York cannot, in fact, be properly proven in most cases, such as the person is unlikely to survive without the forced drugging.  Again, that so many of these orders get issued demonstrates where I think the legal system vis-à-vis involuntary commitment and forced drugging is most broken, which is the lawyers assigned to represent people don’t do their job.

  Forced Drugging Furthering Governmental Interest

The second Sell requirement is that the involuntary medication will significantly further the state interests justifying the forced drugging.  In other words, the forced drugging must accomplish the goal that justifies it.   So, again, the setting matters because that determines what is the state interest(s).   In the restore-a-criminal-defendant-to-competency situation so the state can put the person on trial, the forced drugging must therefore have a good likelihood of making someone competent to stand trial.   However, while in some cases drugs do knock down psychosis, most of the time they merely sedate the person so they are not bothersome.   This was classically stated in the recent reporting in connection with forced drugging of Jared Loughner:

He was removed from a May 25 court hearing when he lowered his head to within inches of the courtroom table, then lifted his head and began a loud and angry rant. But his psychologist has said that since Loughner has been forcibly medicated, his condition has improved. He sat still and expressionless for seven hours at a hearing in September.

Query:  Is sitting still and expressionless for seven hours an indication someone understands the charges against him and can assist his lawyer?   Of course not, it merely shows that the drugs prevent him from being disruptive.  In other words, the assertion that the drugs cause someone to become competent to stand trial can be challenged.  As an aside, I am not in favor of people using mental illness as a way to avoid criminal responsibility for their actions.

In the civil commitment and outpatient commitment contexts, it is also very dubious that the forced drugging will actually achieve the stated goals.   First, we know from Anatomy of an Epidemic and other sources that psychiatric drugs (a) increase rather than decrease violence, (b) dramatically shorten lives, (c) dramatically increase disability; and (d) dramatically decrease recovery.  Thus, it is quite questionable in many cases whether especially the parens patriae justification, in fact, exists.   However, even though psychiatric drugs, especially the antidepressants and neuroleptics, increase violence, the neuroleptics can also render people incapable of causing much trouble.  Thus, neuroleptics very well may further the governmental police power interest in that.

However, it is most often not true that the drugs accomplish the asserted justification for the forced drugging.  Again, the reason why so many forced drugging orders are issued is because the lawyers assigned to represent people, don’t do so.

Less Intrusive Alternatives

The third Sell requirement is the court must conclude that involuntary medication is necessary to further those interests; that there are no less intrusive alternatives.  The Alaska Supreme Court, in the Bigley case, addressed what the requirement means under the Alaska Constitution, 
Although the state cannot intrude on a fundamental right where there is a less intrusive alternative, the alternative must actually be available, meaning that it is feasible and would actually satisfy the compelling state interests that justify the proposed state action.
(p. 31)
As Anatomy of an Epidemic, and many studies and other sources demonstrate, as a factual matter, this is rarely the case, especially if the government has to prove there are no less intrusive alternatives by clear and convincing evidence.  
Here too, the lawyers appointed to represent people facing forced drugging rarely fulfill their obligation to assert the right to a less intrusive alternative.  However, proving there is a less intrusive alternative can be difficult even if the attorney tries because the hospital has an automatic “expert,” the testifying psychiatrist, while the defendant often does not have the resources to employ an expert or otherwise prepare a case.  
In Bigley starting at page 30, the Alaska Supreme Court’s discussion of this issue can give one an idea of the way a court looks at it and the difficulties in prevailing.   In addition to the lawyers assigned to represent people not doing their job properly, one of the biggest obstacles is appellate judges, just like trial court judges, believe the common wisdom that the drugs are helpful and nothing else works.  As I wrote in A Three Pronged Approach to Mental Health System Change, this is one of the reasons why educating the public about the truth is so important.

 Best Interests

The final Sell requirement and the one that ultimately leads me inexorably to the conclusion that forced drugging  and electroshock cannot be properly ordered, is the “court must conclude that administration of the drugs is medically appropriate, i.e., in the patient’s best medical interest in light of his medical condition.”  The truth is that while a small percentage of people might rationally decide to take neuroleptics with full knowledge of their lack of effectiveness for most and harm to all, it is not possible for a court to legitimately find by clear and convincing evidence that forcing someone to take them is in their best interest.   Frankly, I don’t think it is possible under the preponderance of evidence standard.

Space doesn’t allow me go through the evidence on this, but Anatomy of an Epidemic  does.   Much of the evidence has also been compiled as part of PsychRights’ and MindFreedom’s Forced Drugging Defense Package.  It includes an affidavit from Robert Whitaker, the “clickable”  verson of which has hyperlinks to the cited studies.   Also, my 2008, law review article, Involuntary Commitment and Forced Psychiatric Drugging in the Trial Courts: Rights Violations as a Matter of Course has much of the same material woven with the legal standards and the perspective of people faced with such court proceedings.  The bottom line is the evidence does not support forcing someone to take psychiatric drugs against their will is in their best interests.

The same is true of electroshock in light of the harm and lack of benefit from electroshock.  In contrast to the neuroleptics, however, I think electroshock should be abolished altogether in light of its complete lack of benefit and extreme harm.

 Conclusion

Under the United States Constitution, as well as state constitutions, the government is not allowed to force someone to take psychiatric drugs or be electroshocked against their will unless it can prove such drugging or electroshocking is (1) necessary to achieve a compelling governmental interest, (2) the least intrusive alternative, and (3) in the person’s best interest.   In most cases, neither the 1st or 2nd requirement is met because  (1) the drugging or electroshock does not accomplish the government interest asserted, and (2) there are less intrusive alternatives.   The last element, that the forced drugging or electroshock is in the person’s best interest, however, cannot be legitimately proven, which is why I conclude forced drugging and electroshock in the United States is illegal.

The question that jumps out from these circumstances is why people’s rights are being so pervasively violated?  The short answer, as I indicated in A Three Pronged Approach to Mental Health System Change, is the lawyers and judges believe the conventional wisdom that if the defendant wasn’t crazy she would know it is good for her so we won’t let her pesky constitutional rights get in the way.  This is why educating the public is so important.

In addition to this, however,  a big reason why people’s rights are being violated as a matter of course is the lawyers appointed to represent people faced with forced drugging and electroshock proceedings are not fulfilling their professional obligations when they go along with this.  But that is the subject of a future blog.

 

Jim Gottstein, J.D.

Law, Alternatives and Change:   A Harvard educated lawyer and long time activist for change in the mental health system writes about law as it relates to psychiatric rights and fostering truly helpful, non-coercive  alternatives to the current system.

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34 thoughts on “The Illegality of Forced Drugging and Electroshock

  1. Minor quibble to an otherwise excellent post: Loughner has not been deemed competent to stand trial (and probably never will be, I predict); So it doesn’t make sense to present his gorked-out silence at the hearing you reference as evidence of his ability to understand the charges and to cooperate with counsel.

  2. This article hits so many important nails on the head. Thank you Jim for spelling out the constitutionality of this problem, the egregious attack on personal liberty that is the essential problem with forced treatment, and the fallacy of psych drugs and their benefit. Also a huge problem is unprepared patients facing a judge with inadequate counsel. Like a criminal charge, a court-ordered drug “conviction” stays with the person and does irreperable damage, and defendants are ill-prepared and not advocated for by the attorneys usually appointed to fight for them. Great article!

  3. Jim,

    Re: “… the method must be narrowly tailored, meaning there cannot be a less restrictive or intrusive means of achieving the objective.”

    It seems to me that this is an area where the court needs more education… the reality that more holistic treatment exists, and does enormous good.

    Thank you for everything you do!

    Duane

  4. The lawyers need to bring out in court that the drugs do NOT help mental illness – they cause it. ALl the mass shooters were ON them. Jim Marrs in “the rise of the 4th reich” & Robert Whittaker have documented this.

    They cause suicide, homicide.

    The reason they cause it is because mental illness is caused by demonic oppression. ALl drugs which affect the mind are openings for demons, lying spirits. This includes caffeine, nicotine, alcohol, pot, etc & all pysch meds.

    The drugs do NOT make someone ‘competent” – they make it hard to think clearly.

    http://www.1prophetspeaks.com

  5. This article is excellent. Its logic is unassailable.

    Sadly, though, the court system no longer seems interested in constitutional guarantees, whether in terms of psych rights or any others. It does, though, seem that psych rights have routinely been ignored for many years, while most others civil rights are only recently being given such short shrift.

    It seems to me that the vast majority of people need to listen up. The psychiatric system is now ripe for use in controlling the masses. If the inherent rights granted to everyone in the US can be as routinely ignored as they are, then it’s merely a step to use psychiatrists to diagnose anyone who doesn’t fit within the ideology of the dominant paradigm as mentally ill – and force-drug them.

  6. Mind altering drugs have been repeatedly demonstrated to cause irrational behavior. What is it that the mental health community does not understand? This is all about money. The more people demonstrated to be mentally ill by circular reasoning, the more drugs that will be sold, and the more permanent patients to populate mental “health” waiting rooms.

  7. Involuntary drugging & ect is torture, a violation of the 8th amendment against it. The side effects are torture and the drugs are toxic and deadly. they cause brain, kidney, liver damage, obesity, diabetes. They are deadly BY DESIGN. The drug treatments are a continuation of the nazi genocide, the t-4 euthenasia program against mental patients exposed by Dr Peter Breggin (http://www.breggin.com)
    THIS is what lawyers need to say in court & everywhere – CHANGE THE LANGUAGE and expose their euphemistic lies for what they are. The entire mental health system is nothing but a continuation of worldwided nazi genocide using mental health as a cover. The drug companies all come from IG FARBEN, who made the gases & they have hijacked the AMA & APA (As Dr Loren Mosher had said before resigning from the APA).
    Another issue lawyers need to address is that involountary drugging is SLAVERY- since the hospitals and drug companies use patients as medical experiment guinea pigs involuntarily, falsely calling it “treatment”, which is involuntary servitude or slavery. The hospitals hold people for years just for insurance money, it is all insurance fraud, slavery. I have been at state hospitals that do this – they all do.
    The forced drugging of kids violates the child labor laws – this is another angle that can be used legally.

  8. Loughner said some interesting things on his videos. he said “the government manipulates thru grammar” & called his school “my genocide school”. He was probably referring to mind control hypnotic commands that psychiatry and education uses in brainwashing people to be assassins. The Columbine shooters, who were on psych meds, also were taking a “death education” class & 1 said he had nightmares about shooting people after this. The drugs hypnotized them & the class programmed them. Lougner may have been taking some kind of similar class. By finding him ‘incompetent to stand trial” the government just covers their tracks to avoid a trial where these questions can be addressed and maybe exposed. They do this with many assassinations that the CIA used brainwashed paties in – like John Lennon’s shooter, Reagan’s shooter, RFK, JFK, MLK & more. Nazi psychiatrists came here under Operation paperclip & run the CIA, where they continued their mind control experiments under MKULTRA, brainwashing assassins. Bill Clinton apologized for MKULTRA.
    Many judges are masons. Masons run mental health, & they are devil worshippers at the top level. Dr Robert Hanna Felix, the first head of NIMH was head of MKULTRA & head of scottish rite psychiatric research. I have seen the handbook for 32 level scottish rite masonry – written by Albert Pike, a sat-ist- it says “we worship the luciferian principle, but don’t tell the lower levels this”. The CIA, FBI, police etc are mostly masons.
    See my article “The significance of the shooting in tucson”
    http://www.1prophetspeaks.blogspot.com/2011/01/significance-of-shooting-in-tucson.html
    Loughner was in the psych system 7 years earlier. Also, someone called the judge & told him to join giffords, so he may have been the real target & there may have been another shooter. Roll was anti-gun-control. One of the purposes of these mass shootings, is to argue for more drugging and gun control laws, something every totalitarian government has done, including Hitler, Mussolini, etc.

  9. Jim,‎
    In the first case of Faith that you represented, I have some comments and criticisms. ‎
    The Alaska statute of competency includes that the plaintiff must recognize that he or ‎she has a “mental disorder.” if there is testimony (evidence or opinions) that they do. I believe ‎this part of the statute represents a double bind, such that if you do not believe the State ‎psychiatrist and issues presented that appear to justify one has a “mental disorder.” I would ‎like to have seen introduced as testimony, the fact that there is no scientific evidence that ‎establishes there is such a concept as “mental disorder,” especially it’s synonym, “mental ‎illness.”‎
    Another point: Faith testified that she was on navane for many years and had ‎functioned effectively in the community until she was introduced to other meds. In the ‎‎1980′s there were studies that demonstrated that people on anti-psychotic medications ‎required higher dosages on each subsequent administration. Animal studies established that ‎the cortical neurons or receptor sites affected by anti-psychotics actually grew more receptor ‎sites when administered anti-psychotics. Thus the argument that most of the behavior of ‎many individuals prescribed anti-psychotics is, in fact, iatrogenic. In Faith’s case when she ‎was given olonzapine and respiridone, her problems exacerbated another iatrogenic ‎condition. The initial FDA trials leading to approval of respiridone was about 6-8 weeks. ‎When it was first introduced, many psychiatrists wondered why people would regress after ‎about 8 weeks of the initial administration (I was working in a hospital then and saw it first ‎hand). That was why, it was ineffective after the initial CNS insult. This then generated a ‎reason for polypharmacy. Research has established that polypharmacy with anti-psychotics ‎is seriously detrimental to overall health. Not to mention the almost 1:1 correlation with new ‎gen antipsychotic administration and development of diabetes. I personally analyzed data ‎from 5000 individuals and established that…about r=.96, if memory serves, but was ignored ‎by the powers that be.‎
    A third point: when Faith was obviously erroneously diagnosed and placed on paxil, it ‎appears clear that it was the research-demonstrated effects of paxil that exacerbated her ‎psychotic symptoms, another iatrogenic cause of her difficulties. I would like to have seen ‎that addressed by expert testimony on Faith’s behalf.‎
    A fourth point: The aspect of the “clinical gaze,” first referenced by Foucault, or what I ‎referred to in my book as the delusion of psychiatry and psychology, is most always ‎neglected in cross examination of witnesses. In Faith’s case, especially the testimony of the ‎psychiatrist Hanowell whose shared delusion or folie à deux he testified to in court or ‎deposition, that he can see “inside “ of Faith. This needs to be challenged on every instant, as ‎it is a delusion, with no basis in science or fact. ‎

    • “…the fact that there is no scientific evidence that ‎establishes there is such a concept as “mental disorder,” especially it’s synonym, “mental ‎illness.”‎

      Try to convince those who write the DSM and all the psychiatric kingdom that the concept of mental disorder has no scientific data.
      We’ll all join you.
      In reality there is not a double bind for those who are the rulers.

      “Animal studies established that ‎the cortical neurons or receptor sites affected by anti-psychotics actually grew more receptor ‎sites when administered anti-psychotics. Thus the argument that most of the behavior of ‎many individuals prescribed anti-psychotics is, in fact, iatrogenic. In Faith’s case when she ‎was given olonzapine and respiridone, her problems exacerbated another iatrogenic ‎condition. The initial FDA trials leading to approval of respiridone was about 6-8 weeks.”

      Funny that now you use FDA and the “scientific methodology” to defend your arguments.
      It is very strange to me all these “long distance diagnosis”. Well, we see physicians “diagnosing” people like da Vinci, Michelangelo, Cézanne, of course Van Gogh who must have already received all psychiatric labels and a little more.

      “when Faith was obviously erroneously diagnosed and placed on paxil, it ‎appears clear that it was the research-demonstrated effects of paxil that exacerbated her ‎psychotic symptoms, another iatrogenic cause of her difficulties. I would like to have seen ‎that addressed by expert testimony on Faith’s behalf.”

      This is the story of maybe 70% of all psychiatric patients. Do you really believe that a psychiatrist is going to say: “Yes, she was misdiagnosed and Paxil was the reason for X, y and z;
      Another iatrogenic condition was caused by ……. that she took in…
      Do you have an idea of how many drugs patients take? They keep switching the drugs and in the end of one years the patient experimented more than fifteen drugs.
      In the end people don’t know anymore what is the disease, side effect or withdrawal symptoms and psychiatrists never help patients in identifying.
      They don’t even ask when the patient took for the first time a drug to check if the anxiety the person is feeling is iatrogenic.
      On the contrary. They usually say: “No. It is not side effect.” “It is all in your head.”

      “The aspect of the “clinical gaze,” first referenced by Foucault, or what I ‎referred to in my book as the delusion of psychiatry and psychology…”
      Wow! Congratulations! You created a better expression. Foucault was never good with words. His writings are very poorly written and the concepts he created… Poor man!

  10. see article “Free book on web is help for mental health lawyers” http://www.1prophetspeaks.blogspot.com/2012/02/free-book-on-web-is-help-for-mental.html

    1prophetspeaks.com

    chapter 1 of Manual for Transformational Healing-God’s answer to psychiatry has legal issues. Mental health system has 4 constitutional violations – 1st amendment for religious freedom, 8th against torture, 13 antislavery, 14 due process violations. article has additional info useful to lawyers in commitment & drug hearings.

  11. Psychiatrists seldom know the laws which allow them to take a person’s freedom or to force them to take drugs. The bigger issue is that police, judges, journalists and lawyers allow these abuses due to their own ignorance and biases. How often do lawyers who represent persons accused of mental illness challenge judges for their bias, or court rules or decisions for their violations of the Americans With Disabilities Act of 1990, and/or the Rehabilitation Act of 1973, and/or state discrimination laws? I’ve had hundreds of discussions with journalists, police, and prosecutors about this issue and they all show the same bias and ignorance.

    The psychiatric industry was allowed to misuse its powers making mental illness into crime. Police, prosecutors, judges, journalists and lawyers allow this abuse of power contrary to law. Misguided priorities established by campaign contributions by drug companies and human services industry corporations encouraged politicians to write laws for profit not to protect the rights of individuals.

    What other alleged illness is promoted by taxpayer funded state and US agencies? The 50 state Departments of Mental Health and the NIMH are no less than taxpayer funded PR firms for the drug industry. One more example of government working for the benefit of the drug industry, the human services industry and the psychiatric industry.

    Psychiatry itself is divorced from reality. Only psychiatrists can see mental illness. There is no pathology. Mental illnesses are speech and behavior that psychiatrists do not like or do not understand. It is mostly protected speech and behavior which psychiatrists define as an illness. Experiencing emotions is also mental illness. Questioning authority enshrined in the Bill of Rights as The First Amendment is a mental disorder according to these control freaks. But for some misguided reason “the elected criminal class” (Noam Chomsky’s phrase) gave to charlatans the power and wisdom to define reality. Such court decisions (In Re. Kendra’s Law) are written according to the Humpty Dumpty Rule, “Words mean whatever I want them to mean.”

    Here the court makes the irrational conclusion that there is a causal connection between lack of treatment and violence. Linking crime and an accusation of mental illness allows for further eroding constitutional rights. More importantly it demonizes all persons so accused. Due process protections are omitted from laws regarding psychiatry. This is one element of the absurdity of judicial thinking on this matter. The woman Kendra Webdale’s death, (for whom the law is named) was used to emotionally sway the public and the legislature to write the law and to uphold it. The notorious NY AG, Elliot Spitzer, supported the law which was proposed by NAMI.

    Lawyer misconduct cannot be over emphasized. The bias of lawyers and their competence must be questioned and addressed. When a person accused of mental illness questions his lawyer, who does not protect his or her rights, the court, i.e., the judge, just makes that into being uncooperative, and a symptom of mental illness and incompetence. That is where judicial bias must be challenged too. But if the lawyer does not do his job due to bias, he is unlikely to challenge a judge’s unlawful bias.

    New Hampshire legislature passed laws making mental illness a mitigating factor in criminal liability. I do not know how many states allow this. But it is an abomination and a corruption of the criminal justice system. It is no different than Flip Wilson’s character Geraldine saying “The devil made me do it.” when asked why he (she) purchased a dress.

    No mention of why lawyers for persons accused of mental illness seldom use the discrimination laws. Court Rules and Rules of Evidence violate state and US discrimination laws and state and US Constitutions’ equal protection laws. Why do only women enjoy the right to say what happens to their bodies?

    What is the best way to educate the public? Journalists join lawyers, judges, police and the psychiatric industry promoting the abuses you describe. Many journalists take psychiatric drugs and believe psychiatric fantasies. Why for example are there no programs on taxpayer funded PBS stations across the US to address these issues? PBS regularly broadcasts shows about bias against other groups. My efforts at the Boston PBS station led to me being shunned by journalists after I protested the fact that the stations discriminate based on disability. The Boston Globe excluded persons with disabilities from a special advertising section on diversity and vulnerable people. Why do Affirmative Action and diversity experts exclude persons accused of mental illness, when they advocate for multimillionaires who are members of the major three victim groups — Black persons, Women and Homosexuals? Is it the same in every major media market? What will it take to have these issues discussed regularly on the air and in print? What organization that alleges they protect persons with disabilities uses a PR firm as the government and corporations, especially the drug industry, use? NAMI is where most journalists go for information on these issues. NAMI promotes drug treatment and the interests of the psychiatric industry and drug industry. They do not promote the interests or protect the rights of persons accused of mental illness. They say that they protect their right to treatment, but there is no such right.

    • People in this catagory – mental patients – are not being seen as as human beings by the establishment so no one cares what happens to them. This embedded belief must change before getting into the issue of reforms.

      Black people were once a similar situation. Today, when there is a situation – like the young boy in Florida – there is an immediate organized reaction which scares the pants off of the establishment bosses. This is the only thing which keeps the oligarchs in check and gives black people the rights they now enjoy.

      There are over 75 million people psychiatrists comsider “ill” – 25% of the population. However, unlike black activists, they are silent. They are “invisible people”. Unless they organize and do “something”, nothing will change.

      If black people had remained as passive as the patient’s rights movement has, they would still be sitting in the back of the bus.

      It is not enough just to “know” that there is a problem and then assume things will change. A certain level of force is necessary – as was the case in the civil rights movement – to make society change its beliefs.

  12. Jim, as always you present great viewpoints and arguments but I am going to throw a wrinkle in such.

    As you know, I am a Guardian of an adult who is in pirson and my statutory authority prohibits those in prison from giving medical treatment unless (a) I consent to such, (b) they obtain a court order to do so, or (c) there is a bona fide life / death emergency and I cannot be contacted. State law also prohibits those in prison from restricting or preventing my duties and authority.

    So, my question to you is how would the court rulings that you cite come into play when a person has a Guardian and there is clear state law that prohibits rendering medical care to say someone in civil commitment or in prison – in other words, after they are convicted of a cirme.

    • Chris, except for “emergencies” involving imminent severe harm, legally people have the right to decline the drugs unless they are “incompetent,” in which case the government obtains authorization to step in and make the assumed rational decision. In both the guardianship situation and the Advance Directive situation, this legal justification cannot exist. In other words, it is illegal to drug someone on the grounds that the person is crazy and doesn’t know it is good for him, when there is already a guardian in place. So, the authorities will often just ignore it and drug the person anyway.

      There may be statutes that take the guardian out of the picture in certain circumstances in some states, but this may also be unconstitutional.

      It is perhaps a little more complicated in the Advance Directive situation, because they can say the person was incompetent when they signed the Advance Directive. That is why I recommend people getting someone, preferably a psychologist or psychiatrist, to certify the person is competent right on the Advance Directive at the same time as the person signs it.

      Still, this doesn’t mean it won’t be ignored by the authorities.

      This is why I think the approach suggested in my Three-Pronged Approach blog is the way to change the system. In advance of that, having zealous legal representation, which is very hard to come by, is what one needs and that might not even be successful.

      • While I can’t speak for the US, within Australia, guardians are not allowed to override mental health laws. Mental Health laws trump all other laws. So guardians have the right to make all decisions except for mental health ones! This means they can forcibly drug all they like. It also means that parents have no rights and the state can very easily forcibly drug a child, while the child is still living with there parents. Just make someone and involuntary patient and they can do as they like. Refusing treatment is grounds for making someone an involuntary patient. Having the capacity to consent to treatment and refusing to do so, is justified forced drugging. While psychiatrists are required to “consider” advance directives again, mental health laws override them. Psychiatrists can do as they wish to save someone’s life and keep them well!! My reading of some mental health laws in the US and from what I have been told is that advance directives are not legally binding anywhere in the world. I am also aware of many cases in which guardians are not allowed to make mental health decisions. Interesting though people in our prisions cannot be forced to take psychiatric medications, and they claim that the reason we need to divert people away from the criminal justice system is to ensure they get the treatment they need as prisoners have too many rights and don’t know how to use them, as no sane person would refuse these drugs. We have forensic mental health facilities, primarily for those found criminally insane, but also for those that prisons want stablised, before they ship them back.

  13. nice words….but my point remains, illegal and criminal are in no way synonymous and even when they accept they are behaving illegally…so what? they never prosecute themselves so it never stops…and regardless, been my experience only way to get a name is to kill one in self defence and with no symbols/ identifying marks or anything how are you supposed to know theperp is one of them?

  14. Ginger Ross Breggin agrees that Soteria would be more cost effective. The facilities are already available. Yet it is so difficult to reeducate these people even if the wanted to change. So many of the Child Protective Services, attorneys and Judges don’t keep up with the FDA Advisory Committee Hearings, or Black Box Warnings or advertisemants on TV let alone the prints out on the effects of thses drugs. And the pharmacists don’t really go into detail. They have endangered my grandson’s life. He has attempted suicide, and ran away from foster care. They are holding my other son in a locked down facility. There is so much retaliation. This is because I have reported some of the facilities to the Centers for Medicare and Medicaid. Captain Stephen Chicory contacted the DOJ in 2003 and they Investigated Metropolitan State Hospital in Norwalk, CA. C.R.I.P.A. violations. They released my son to me in 2003. They even transported him in a police helicopter. I had no help to have his medications titrated. Even if they were to be released it takes a substantial amount of money for after care. My son is now diabetic he may or may not recover. He wants to live on his own. This is a difficult fight. I know the right people.
    What do you think of the government asking people to drop off unused medication at designated drop off points. There was an article that Lake Mead had a high level of drugs in it’s water. You are a very courages individual with many supporters. I will re-read what you wrote so that I will get a better understanding. Thanks again.

  15. Hi Jim,

    Good analysis of forced drugging under the Sell standard and using the massive information compiled by Robert Whitaker to make the case that the drugs do not fulfill the purposes that the state claims for them. It might be feasible to get this to work. But it would be necessary to invalidate the statutes and case law standards under which forced drugging is carried out and not only to make it into a standard that exists in individual cases, if this is to be meaningful. If we remain stuck in the world of procedural safeguards, we will always have the cynicism, humpty dumpty approach, deference to psychiatrists, fear of being the judge that let somebody go undrugged who did a terrible thing, and incompetent (or just discouraged) lawyering.

    I’m wondering if an equal protection argument would help here. Equal protection/ non-discrimination has an important political value, to call attention to the reasons why the harms done to this particular population are so callously ignored, the 25 year less life expectancy etc., and why the irrational standards are kept in place (psychiatric diagnosis as a de facto proxy for violence, a threshold determination that makes you eligible for preventive detention and compulsory drugging for behavior control, despite all the studies showing poor or no correlation). We could analyze the ADA “direct threat defense” in much the same way as you do the Sell analysis, dismantling its relevance to this situation and in any case not justifying entire laws that are based on a premise of discriminatory eligibility for adverse treatment. It really is like the Jim Crow laws, or the Nazi laws that placed restrictions on Jews, the mh laws are facially discriminatory period.

    And with that I’d also like to point out that civil commitment itself, and not just forced drugging /ECT has to be gone after, because once you are locked up they will find ways to do things to you that you won’t like. This may be harder from a constitutional law perspective but I’d be interested in your analysis of this. (And also guardianship – while some people become guardians in order to protect their loved ones from forced drugging, there are obviously others who do the opposite, and I imagine this would increase if that was the only route left to them.)

    One thing about the Washington v. Harper case – correct me if I’m wrong, but I was pretty sure that the SCT said the orderly running of the institution was part of the inmate’s medical interest – that was what drove me to drink when I read it. It would be nice if it turns out after all these years that the SCT was not as cynical as I had thought then.

    One last thing, for anyone reading this page who isn’t aware as I know you are Jim, of the international human rights law that supports the full abolition of psychiatric commitment and forced drugging/ECT. The Convention on the Rights of Persons with Disabilities, now the authoritative standard in the UN system, recognizes that people with disabilities have equal legal capacity as others to make decisions in all aspects of life, prohibits deprivation of liberty based on disability, and requires respect for physical and mental integrity of pwd, including free and informed consent to any medical treatment. The UN has called on countries to repeal their mental health laws under this standard, and the Special Rapporteur on Torture has acknowledged that forced/nonconsensual drugging and ECT, and civil commitment, can amount to acts of torture and ill-treatment. Materials on this can be found on the website for the Center for the Human Rights of Users and Survivors of Psychiatry.

    I have begun to work with other activists on a campaign to Repeal Mental Health Laws in the U.S. and Canada. We are interested in reaching out to all people with similar goals, and from my perspective this constitutional analysis is a step in the direction, so I hope that we might join forces in some way.

    • Tina, as usual, you make good points. There are many ways to make legal challenges to coercive psychiatry. The biggest obstacle in my mind is the lack of legal resources to challenge the status quo. We need to bring public attention to the scourge of current psychiatric practice. That is why I hope everyone who possible can, comes to Philadelphia May 5th to Occupy the American Psychiatric Association at its annual meeting. http://psychrights.org/education/OccupyPsychiatry/OccupyAPA5-5-2012.htm

      • “The biggest obstacle in my mind is the lack of legal resources to challenge the status quo.”

        You’re so right Jim!
        We are dealing with crimes. We need lawyers that are aware of what is happening in the psychiatric kingdom and also in other branches of medicine.

        I admire your work. My father is a prosecutor – retired – and I ran from laws. :)

        Now I know what I could have done if I had followed his steps.
        :)

  16. Thanks for this inspiring article. The one thing I could agree with more is the need to get the truth out there. While judges and others believe in these drugs then nothing at all will change. The other big factor is that thousands of people voluntarily take these drugs as they believe what they have been told. From my personal experiences more patients are anger with Whitaker for this work than psychiatrists. It is the patient groups defending the status quo more than psychiatrists. And this is not just NAMI. Changing the laws will in my opinion do very little, as Tina said the families will simply use Guardianship to get control and the vast majority of people would continue to consent anyway. When you are presented with no other alternative and when everywhere around you tells you these drugs are like insulin for diabetes what hope is there.

  17. I was involuntarily hospitalized, committed, and forced drugged and the consequences have been devasting.
    Do I have any legal recourse after the fact?
    Great article and comments here.
    Jon W.

    • Also – I want to add that I am responsible for paying close to $60,000 dollars in medical bills for hospitalization that was involuntary. I can be sued for not paying these bill yet the doctor who mistreated me by forcing me to take dangerous drugs that made me worse so has to increase the length of my hospital stay and which have ruined my health cannot be sued.

      I don’t see how this is fair or legal. Any thoughts about this?

      Jon W.

  18. The reality is different than the legal understanding. With a 3.5 GPA, my intention was Constitutional Law. However, I found out in my third year that due to my diagnosis, I would never be allowed to practice. I love the law. I even give talks on the real bill of rights to elementary and junior high students. (They often ask if I’m talking about the same Revolution. See, mine’s exciting and not about taxes and tea.) I struggled with this and eventually came to the decision that if I could help people in any capacity of the law, I would be doing something worthwhile. With three semester remaining before law school, I have withdrawn. The state of Georgia now requires a mental health screening for any government position, certification, or license granted by the state. I can’t even be a massage therapist. They require full disclosure of your psychiatric history, and though I sacrificed my own health and have been treated and medicated for 8 years, I was hospitalized in my teens for nearly five years until a judge ordered my release and my mother out of my life. Under a 20,000 student loan, unable to practice in my field in any manner, and I am not mentally able to go back to my old job, I am now considering SSI after 34 years of refusing and feeling it meant I was giving up. Here, involuntary hospitalization works like retirement homes. The state claims your property to pay for their forced confinement. They have also adopted their own definition for mental illness. What other people can’t comprehend is that once bipolar is said out loud, you may have rights, but who do you plan to argue them with? I once called my old psychiatrist to advise I was discontinuing zoloft because it made everything “very dark”. I had called to report this problem and move my appointment up of my own free volition. I was advised to meet her at the hospital immediately or she would send an ambulance. Failure to comply would be seen as self destructive behavior and she would be forced to have me held for 72 hours.

  19. To Jim Gottstein and Robert Whitaker:
    All you say is true and I’m speaking from experience. Going through a divorse as a battered wife and suffering from loss of several close family members and friends deaths,with symptoms similar to ptss and depression but totally understandable considering the circumstances. I was misdiagnosed and placed on drugs which put me in a city/state program system for those unable to care for themselves they said? It was hard to get out of. I was alone in this state with 2 minor children and most others I knew I was isolated from, by my abusive controlling husband. Thank God my primary Doctor who kept asking the conservators “if it was even legal what they were doing to me” and they kept dismissing his protests which lead him to send me to a Attorney he knew. And Thank God the attorney sent me to his girlfriends father, who was a retired Dr. with several degrees and appauled by what was happening. Since they made themselves concervatives of all the money I had coming in from my business(which is also conflict of interest) and denied me money to attain my own attorney or Dr. evaluation. The Dr. and lawyer represented me without money to seek justice. For fear of liability and being sued they fought hard to not admit wrong doing. I was blessed that I escaped but many are not so lucky. If I had not gotten off the drugs and out of that program, I would never have been able to represent myself to competantly escape the financial and personal abuse and violation of all my rights. I had many symptoms you spoke of from the drugs and saw first hand how many were illegaly in that system violated and medical lies by many who were perticipants in the abuse. The Dr. retired who is also writing a book wanted me to read your book and write my own, as I had a unique situation. To see it first hand not being mentally ill myself but put in a situation to experience it, by temporarily being put in a system many are put in and experiencing all the symptoms of the meds is proof of all you know and have written. Proof is also how quickly I recovered after only months of getting off drugs and naturally healing from emotions of past abuse and deaths with a support team not drugs.I had never been on drugs for 55 yrs of life, never hospitalized for mental illness and was holistic in nature. To force me to take drugs was a clear violation of my rights. When they had no idea I wasn’t taking the drugs for( 1 and half yrs) they testified how great, I was doing, now that I had been taking the drugs regularly and feared for my recovery, if I went off them. They not only proved the opposite but convicted themselves of the lies they were pushing on me and many. The only way I escaped this program of medication management (forced medication) was to outsmart them at their own game legally with the support of caring individuals. I feel led to do it further legally and publically to help others. They made another mistake by not knowing that in my past, I worked as a program therapist for mentally disabled and retarded individuals and was a guardian on a committee for their rights with a panel of parents with children disabled.
    I was well aware of all the rights violations they were committing but legaly they were illegally preventing me from exercing my rights by appointing me a attorney, who was their attorney( being paid from my personal funds) who dismissed anything, i said to him.Refusing to give me my own money to hire anyone. Talk about conflict of interest. Please contact me by email if interested in my testimony.

  20. Great article, Jim.

    The most frustrating thing, to me anyway, is the idea that refusing meds is proof of incompetence. There is absolutely no room for someone (like me) who has considered all the evidence available and decides to go drug-free. The only thing you can do is stay a voluntary patient and, often, one of the conditions of staying “voluntary” is to accede to their demands. It’s very unfair and society would not tolerate this with any other group of people.

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