What Is the Emergency?

Jim Gottstein, JD
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The Law Project for Psychiatric Rights (PsychRights®) is again challenging Alaska’s commitment law as unconstitutional.  Briefing has recently been completed in the Alaska Supreme Court case of In the Matter of the Hospitalization of D.G., with oral argument likely to be held in mid-October, 2013. In this case, PsychRights is challenging the common practice of getting court orders to lock people up for continued psychiatric evaluation without even notifying the person of the legal proceeding filed against him or her and giving him or her a chance to give their side of the story.

The setting is that D.G. was brought into the psychiatric emergency room by the police on February 26, 2013 at 8:50 a.m., after his father called saying D.G. was suicidal.  See, Notice of Emergency Detention and Application for Evaluation.  Then, at 3:09 p.m., the psychiatric emergency room filed an ex parté Petition for Involuntary Commitment for Evaluation (Ex Parté Petition).  “Ex parté” is a Latin phrase that translates to “from (by or for) one party” and is defined in Black’s Law Dictionary, 7th Ed., to mean “On or from one party only, usually without notice to or argument from the adverse party.”  In other words, D.G. was not given notice of the court filing against him and therefore had no opportunity to respond.

The Court issued an ex parté Order on Petition for Commitment for Evaluation (Ex Parté Order) that D.G. be delivered to the Alaska Psychiatric Institute for further evaluation just 36 minutes after the Ex Parté Petition was filed.  Two days later, the Alaska Psychiatric Institute, discharged D.G. because he did not meet commitment standards. See, Notice of Release.

The appeal is based upon the principle that Due Process of Law requires people to be notified of legal proceedings against them and an opportunity to tell their side of the story unless there is an emergency justifying lack of notice.  As the United States Supreme Court has held:

For more than a century the central meaning of procedural due process has been clear:  ‘Parties whose rights are to be affected are entitled to be heard;  and in order that they may enjoy that right they must first be notified.’   It is equally fundamental that the right to notice and an opportunity to be heard ‘must be granted at a meaningful time and in a meaningful manner.’ (Hamdi v. Rumsfeld, 542 U.S. 507, 124 S.Ct. 2633, 2648-2649 (2004)).

As suggested, this right is not absolute.  The classic justification for no notice is the search warrant situation where if notice was given, whatever is being searched for would likely disappear before the court hearing.

In Alaska, the Alaska Supreme Court states:

We have consistently held that, except in emergencies, due process requires the State to afford a person an opportunity for a hearing before the State deprives that person of a protected property interest. (Hoffman v. State, 834 P.2d 1218, 1219 (Alaska 1992)).

The United States Supreme Court has phrased it slightly differently, holding that a hearing is constitutionally required before rights can be taken away if the State can reasonably provide one.  (Zinermon v. Burch, 494 U.S. 113, 132 (1990)).

Thus, the basis of D.G.’s appeal is that there can be no emergency justifying depriving him of notice and an opportunity to give his side of the story when he is in custody, presumptively safe, and unable to harm anybody else either.  The State’s substantive argument is basically, “hey, he was only held for two additional days, the system worked.”  In fact most of the briefing is over whether the Alaska Supreme Court should decide the issue.  In the past, the court has held commitment appeals are moot because the person has been let go by the time the appeal is heard.

Prosecuting this appeal is important for a number of reasons.  First, of course, is that people, such as D.G., accused of being mentally ill and dangerous to themselves or others should have the same Due Process rights as people not so labeled.  However, the most important reason is it is important to reorient the courts hearing these cases to treat them as real legal proceedings.  In my law review article, Involuntary Commitment and Forced Psychiatric Drugging in the Trial Courts: Rights Violations as a Matter of Course, (25 Alaska L. Rev. 51 (2008)), I characterize these proceedings as shams.  This law review article discusses about half of the ways I have identified in which people’s rights are uniformly violated in Alaska, including the grounds for D.G.’s appeal.  Another reason it is important is that people subjected to these “Kangaroo Courts” quite properly feel they have not had a legitimate court proceeding before their rights were taken away.  They certainly don’t have “their day in court” when court orders are sought and awarded without even notifying them.  Of course, when they express such sentiments, they are characterized as symptoms of the person’s “mental illness.”   Being treated this way leads to escalation.

Secret court proceedings against someone certainly justifies the feeling that people are out to get them.  Expressing this sentiment is characterized as paranoia.  If people felt they had a fair legal process they are  likely to be less upset.

All of the briefing and other documents in this case are available at In the Matter of the Hospitalization of D.G.

For those interested in learning how PsychRights uses court cases, I will be giving a talk on the Role of Litigation in a Strategic Approach to Mental Health System Change at the National Association for Rights Protection and Advocacy (NARPA) 2013 Annual Rights Conference, September 26-28 in Hartford, Connecticut.

NARPA’s Annual Rights Conference has historically been terrific and this year’s line-up is outstanding.  I encourage folks who are able to attend to do so.  I hope to see you there.

 

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10 COMMENTS

  1. Jim,

    Re: “First, of course, is that people, such as D.G., accused of being mentally ill and dangerous to themselves or others should have the same Due Process rights as people not so labeled.”

    Amen. IMO, if the Constitution does not apply to the most vulnerable, it applies to no one.

    Thank you for taking this case and for all you do.

    Best,

    Duane

  2. Jim, any chance you could clone yourself and come down to BC? As it is here right now, no court order is required in order to commit someone. All it takes is two doctors’ signatures and often the second doctor doesn’t even examine the patient.

    The “choices” in this situation are as follows:
    (a) “Consent” to incarceration and treatment; or
    (b) Have the director of the mental health facility provide “deemed consent.”

    Forced treatment can (and usually does) begin right away. There is a long wait for a Review Panel and, by then, you can be seriously messed up on neurotoxins.

    Please keep up the fantastic work you do in Alaska and let’s all hope that the effect of your continued successes will trickle down to BC.

    Best wishes,

    Francesca

  3. The coerced / forced drugging that usually goes with this emergency treatment scenario goes beyond just losing ones liberty, I called it chemical rape when it happened to me after going to the E.R with panic attacks actually caused by meds I was given for anxiety.

    If I am ever suicidal for real go ahead and keep me safe just don’t rape me with drugs against my will.

    Any of their drugs, given against my expressed wish, are an intrusion upon and thus an assault on my body and constitute, in my view, criminal assault.

    • Dear Copy_cat,

      You’ve got that right, it is chemical rape.

      I have a question for you, were you also billed for the rape services?

      Here in the state of Florida, under the Baker Act involuntarily committed individuals are financially responsible to pay whatever the costs are of the forced treatment. The exceptions are cases of felony offense arrests. Bills for forced treatment should be considered forced contracts.

      Unlike any other situation, those labeled “mentally ill” become part of a class of our society who can be forced into contracting the services of facilities and their employees.

      The constitutionality of of coercive psychiatry should be questioned as it creates forced contracts with limited providers.

      Involuntary commitment laws are dangerous because they place consumers in a forced relationship with facilities and their employees while limiting their ability and access to contract medically necessary treatment options.

      Involuntary commitment facilities do not allow access to electronic devices, thereby limiting their consumer’s ability to informed consent and knowledge of medically necessary treatment options.

      In October of 2008 I was Baker Acted by a psychiatrist employed at a non-hospital, not-for-profit facility in FL.

      During the 12 day period of my detainment, this facility provided me with extremely limited, noneffective services in poor quality, non therapeutic conditions, at an undisclosed rate of over $600 per day.

      I received a statement from the facility listing each “transaction” for a total of $8263.01 to be paid in full.

      Transaction is defined as:
      An instance of buying or selling something; a business deal.
      The action of conducting business.

      I filed a complaint with the billing department of this facility disputing the cost of services that were undisclosed to me at the time of the forced “transactions”.

      The complaint included documents from my prior worker’s comp case involving suffering from an occupational disease that was originally misdiagnosed as bipolar disorder with psychotic features and later schizoaffective disorder.

      Although the treating psychiatrist employed by the facility acknowledged that I was suffering from an abscessed tooth, he extended my stay by pursuing a Baker Act. This action against me interfered with my ability to contract necessary dental treatment, prolonged my suffering, restricted my personal freedoms and caused me to incur substantial debt. The medication management provided by the facility made my symptoms worse and quickly induced tardive dyskinesia. His actions and the advice of the attorney who solicited and represented me at the Baker Act hearing were discriminatory in nature and not in my best interest.

      My complaint to the facility included billing statements from my dentist indicating that upon release from the facility I sought medically necessary treatment for the infected tooth.

      Once the infected tooth was treated, symptoms abated and I tapered off of all psychiatric medications.

      The 2008 Baker Act has not been expunged from my records but I did successfully argue that I was misdiagnosed and entered into an invalid forced contract with the facility.

      If a contract isn’t voluntary, it can’t be valid.

      The representative of the facility stated the best way to satisfy my complaint was by dismissing all financial obligations.

      When considering forced psychiatric treatment, mental health advocates must consider the fact individuals with symptoms considered to be severe mental illness have higher rates of chronic general medical illness compared to the general populations and on average their lifespan is 25 years less.

      It is critical for advocates to work together and strive to improve the overall health care of consumers labeled “mentally ill”.

      Symptoms of psychosis and mania should always be assessed using the Best Practice Assessment guidelines published in the British Medical Journal. Failure to do so is negligent and unethical, as it limits a consumer’s treatment options to medication management and jeopardizes their long-term health.

      My own experiences in our mental health care system include numerous situations in which indications of underlying medical conditions have been obviously overlooked and blatantly ignored.

      Psychiatric treatment acts with negligence and commits criminal assault.

      Thank you for expressing your views.

      Kind Regards,
      Maria Mangicaro

  4. I have this hearing when my stay was extended, what a joke. I rather be subject to due process accorded to the criminally accused then be subjected to psychiatric or psychological assessment, processing, profile, confinement and treatments.

    You should have a jury trial before psychiatry can drug rape you.

    What psychiatry called “help” , the thing I went to the E.R for was the worst thing that ever happened to me.

    • Copy Cat said:

      “You should have a jury trial before psychiatry can drug rape you.”

      Even accused rapists get more due process than people accused of being brain diseased. Imagine if a ‘jury of our peers’ had to actually look us in the eye and watch us plead for our human right to own our own body before it was taken away from us?

      Maybe things would change with juries. Good comment Copy Cat.