Should PsychRights Ask the
U.S. Supreme Court to Hear an Appeal of the Alaska Supreme Court’s Decision?

Jim Gottstein, JD
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A week ago, on February 7th, the Alaska Supreme Court issued its decision in Daniel G., and I am writing to obtain views on whether PsychRights should ask the United States Supreme Court to take the case on appeal.  (See What is the Emergency? for earlier discussion of this case)   There are close to 9,000 such requests, called a petition for certiorari each year, with the Supreme Court taking around 80, so the odds are very bad to begin with. It is not quite that bad because around 7,000 are prisoner appeals and only a handful of those are taken.

So, one question is whether it is even worth the effort in light of the unlikelihood of it being taken.  However, I also have some concerns about whether people think it would even be good if we tried and won.

The issue is whether it is a denial of due process – to have a court proceeding to decide whether someone who has been brought into a psychiatric emergency room by the police for an (up to 24 hour) evaluation – to be transferred to a psychiatric hospital for an (up to additional 72 hour) evaluation (not counting weekends and holidays), without giving the person any notice that court proceedings have been brought against him or her and given an opportunity to tell their side.

The hallmarks of procedural due process are notice and an opportunity to be heard, which means the person is informed of the allegations against him or her and has the right to present his or her side to the court before it makes its decision.  Like all constitutional rights, however, these rights are not absolute.  The classic example of an exception is the search warrant situation, where if the person was given notice and an opportunity to be heard about whether their house should be searched, if there was something there it would disappear before the court had a chance to decide on the search.

Basically, the rule in PsychRights‘ view was stated in a case called Zinermon v. Burch, in which the United States Supreme Court held that if the state can reasonably provide a hearing before depriving somone of his liberty, it is required to do so.  In PsychRights‘ view the state can reasonably provide a hearing when someone is in custody in the psychiatric emergency room and presumptively not a danger to self or others.

The Alaska Supreme Court did not address this contention, holding instead that having the ex parté proceeding is a fast way to make sure that someone is not confined improperly.  This is based on its view that having what it calls a “neutral” judge review the ex parté petition to determine whether further detention was warranted after “disinterested” staff at the psychiatric emergency room had determined a full psychiatric evaluation was needed results in meaningful judicial scrutiny:

“The evaluation petition was filed by disinterested medical staff after determining that Daniel was in need of a full psychiatric evaluation. A neutral magistrate judge promptly reviewed the petition and determined that it stated adequate cause to support an evaluation.”

My problem with this is that the vast majority of such ex parté petitions, not just in Alaska, but around the country, are essentially rubber stamped.  Daniel’s release shortly after the ex parté order was issued is the exception, not the rule in my experience.

Still, I do think that requiring the person be given notice and an opportunity to have his say, presumably with an appointed attorney (don’t get me started) will add some time before a judicial decision is made.  Since in the vast majority of cases the ex parté petition is granted and the person is on the road to a commitment, I don’t think it will lengthen the confinement in very many cases.  Also, it is not that I think requiring such a procedure will dramatically reduce involuntary commitments, which is really a euphemistic term for psychiatric imprisonment, primarily because the appointed lawyers don’t do much, if anything, on behalf of their clients.

Still, I do think that anything that makes it harder to confine someone makes it more likely that another “solution” will be found.  In my view, under the current regime it is so easy to force people (including psychiatric imprisonment) that the psychiatrists don’t even try to work something out with their patients.  It is “the path of least resistence.”  To the extent that it is made harder, then other approaches, such as spending the time to try and come to some sort of agreement, try to make their patients feel safe and heard, etc., becomes more likely.  Dr. Loren Mosher’s testimony as follows in the Myers case exemplifies this:

n the field of psychiatry, it is the therapeutic relationship which is the single most important thing. . . . Now, if because of some altered state of consciousness, somebody is about to do themselves grievous harm or someone else grievous harm, well then, I would stop them in whatever way I needed to . . . In my career I have never committed anyone. . . . I make it my business to form the kind of relationship [through which the mentally ill person and I can establish an ongoing treatment plan that is acceptable to both of us.

However, the big question is whether or not folks think PsychRights should ask the United States Supreme Court to hear an appeal in spite of the likelihood that if we won, it would take longer for people who are facing involuntary commitment to get a judicial decision.  In this regard, I might point out that when I represent someone in a commitment hearing I tell them it will take me at least a day or two to get ready.  I tell them if they don’t want to wait that long for a hearing, they can use the public defender and almost certainly be committed, or they can use me, wait a day or so, and have a real shot of not being committed.  This is a similar situation.

From my perspective, it would be better to just allow the psychiatric emergency room to transfer the person to the hospital for further 72 hour evaluation, rather than have what I consider an illegitimate court proceeding.  However, other people may disagree.  I just think it is important that if the court system is invoked that the normal due process rights be honored for people accused of being mentally ill.

So, please let me know what you think about whether we should ask the United States Supreme Court to hear an appeal on this issue by posting a comment.

Click here for more detailed information on the briefing and other information about this case.

 

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42 COMMENTS

  1. The more publicity we can get the better it is going to be. The problem is the that the media, the public, most of the lawyers representing the patient, are all in favor of involuntary commitment. The drug companies have done such a great job of promoting their message that they have wonderful drugs which can help disturbed individuals that everyone you talk to seems to agree that involuntary commitments are heroic, life-saving acts. If PsychRights can bring their case to the Supreme Court, even if they don’t win, it will hopefully at least give our side the chance of being heard.

  2. I wonder if granted a writ and achieving a favorable ruling would consumers subsequently be able to access timely, competent, and vigorous legal representation at the local level? Sadly, having a right and exercising it are often quite different in the mental health system.

    As you note, “… they can use the public defender and almost certainly be committed …”

    • The quality of representation is a big problem. From my perspective it is pretend representation. I think it is a violation of their professional responsibility and have long contemplated filing something with the bar association about it. I am getting closer. One of the considerations in filing a petition to get the Supreme Court to take the case is it takes time away from such other work.

    • Hi Merganser,

      It is legitimate point of view that to engage on the basis I am suggesting somehow legitimizes the idea of forced psychiatry. Tina Minkowitz, who has a number of posts on Mad In America takes that position and I respect it.

      However, I also think that people’s constitutional rights ought to be respected.

  3. Jim – You take me back 45 years to when, as a law student, I spent the summer working for the New York State Mental Health Information Service helping to represent “mental patients” at Bellevue in NYC, trying to spring them from the clutches of the system. You look to have a good case – the Alaska court’s reasoning is lame – how do they know the docs who evaluated the patient were “impartial,” and since when do parties in legal proceedings have to, as Blanche DuBois said in Streetcar Named Desire, ” … rely on the kindness of strangers” to secure their legal and constitutional rights? Your argument is completely reasonable – nobody was “endangered” (except maybe the patient himself) since he was already in the hospital.

    I think the only way “mental patients” will get rights is via a full court press on all fronts – legal, cultural, politics, personal. So I think you should go ahead and file for cert.

    Thank you for the great and courageous work you have been doing for years.

  4. The deprivation of my liberty was only a very minor violation compared to the coerced drugs they said I ‘needed’ . False imprisonment Vs rape. Big difference. I always call it rape because I did not want that ‘medication’ inside me , period.

    My mind, my body end of story.

    Maybe the effort would be better spent on protecting psychiatric prisoner rights after commitment ?

    My ordeal would not have been so bad if people were not making threats of injection in an attempt to force me to swallow that nueroleptic overdose. It was way way to much.

    All I did ‘wrong’ was drink to much over some bull in my life and goto the hospital for detox on my own free will. My family was contacted and told them about my “history” (getting really screwed up by a reckless prescriber, Clonopin addiction 8mg+ a day , Dexedrine , Remeron and evil Zyprexa.)

    I was off that chemical nightmare for years and refused to go back to it over a bad week with alcohol. I was stuck in that psychiatric hell hole for almost a month.

    Of course If I got due process the nightmare would have been over before it even started cause voluntarily showing up at the hospital asking for help cause you know you need it is a pretty lame case for ‘danger to self and others’.

    Universal Health Services and the rest of the mental health mafia knows how to make there billions, that’s for sure. I walked right into the trap.

    • Hi Copy Cat,

      I will put you in the no column because you think I should spend my time on something else. One of the things I really need to do is raise a substantial amount of money to get some help, but I keep doing the litigation instead.

      I may be getting to the point where I just have to accept that I have to concentrate on raising money.

      • The only vote “no” because I think the supreme court will simply not take the case cause it would be to difficult to explain not overturning the Alaska decision.

        Want raise money ? Sell a do it yourself kit for filing a lawsuit for people who suffered psychiatric abuses.

        I heard over and over in that ‘hospital’ people stating “I am going to sue this place” who had no idea what a difficult task it is.

        My case was winnable but no lawyer would take the case, I know the hearing to keep me in that hospital was not held on time a violation of my civil rights under U.S. Code, Title 42, Chapter 21 § 1983, Civil action for deprivation of rights.

        Its well over 2 years now so there is nothing I can do.

        The do it yourself kit could also include how 2 for fighting the bill for unwanted treatment.

        The general public just has no idea how the mental health ‘mafia’ makes its billions, they actually believe people get ‘help’ behind psychiatric locked doors, if they only knew.

  5. Jim,

    I think that you should do what you think is the best approach since you are already spread too thin with limited resources. Also, you have made great decisions on what approach to take to attack this assault on humanity in the cases you have already made.

    Also, I have had a related question I’ve been wanting to ask you for quite some time, so this post gives me a good opportunity.

    Now that even Dr. Thomas Insel, Head of NIMH, has admitted that the DSM is totally invalid and lacking all evidence, it appears to me that law suits are in order for doctors forcing these bogus life destroying stigmas on people to push their toxic treatments, which also lack any evidence of efficacy while there is plenty of evidence of harm as you and Dr. Grace Jackson proved in your brilliant defense in Alaska. Back peddling and saying this is the best thing we have is like continuing blood letting now with the same excuse. It doesn’t cut it and biopsychiatry is not a real medical discipline, but rather a means of social control and sneaky human rights violations as everyone knows. Plus, these junk science stigmas destroy people’s lives in every area.

    What right do these frauds have to prey on people with such junk science that countless experts have admitted is total pseudoscience. See the recent book, Mad Science, reviewed on this site and on Amazon recently and the countless other books/articles exposing the DSM and psychiatric fraud in general. Weren’t there some legal precedents against the use of junk science in the courts?

    Joanna Moncrieff has exposed that the psychiatric “diagnosis” is not about medicine, but predetermined actions that are taken that violate the person’s human rights in the guise of medicine she has called psychiatric imperialism once the stigma or degradation ritual is in place.

    Now, it seems to me that fighting against bogus psychiatric stigmas would be one of the best things to do since that is the horror that allows all the other destruction to those caught up in the system. I have read articles where real medical doctors were sued and even jailed for fraudulently diagnosing people with heart and other problems to perform unnecessary, expensive operations on people to make money at the patient’s expense. Regular doctors can’t diagnose somebody with cancer and give them chemo to pad their wallets can they? If not, why should psychiatry get away with this monstrosity against vulnerable people in crisis?

    I would really appreciate it if you could address this question because I have been really upset to see business as usual despite the fact that even Dr. Insel has admitted the lack of evidence, science and validity behind the pseudoscience of the voted in DSM disorders or the “book of insults” as you would say created to push the latest lethal drugs on patent that deny all the social injustice, abuse, oppression, violence, inequality and trauma that really cause the so called symptoms they medicalize to everyone’s great peril. Gary Greenberg’s recent book, The Book of Woe, does a good job of exposing this fraud as well.

    I want to thank you so much for all of your hard efforts on behalf of those at risk for this evil menace that Dr. Fred Baughman, Neurologist, calls 100% fraud and the worst medical crimes ever perpetrated against humanity. He has served as a witness to Congress and others and I believe he’d testify to back you up if you decided to go after fraudulent psychiatric diagnosis that starts the horrific assault on the victim in the first place.

    Thank you for your consideration.

    • Hi Donna,

      Dr. Insel also recently said that something other than the drugs should be tried for many people.

      I agree that we should be fighting the bogus psychiatric system, which is what I think I am trying to do. However, as I just said to CopyCat, we really need to raise some money to hire more attorneys because I just can’t do enough by myself.

      In terms of an overall approach, you might be interested in my talk at NARPA last September on the Role of Litigation in a Strategic Approach to Mental Health System Change, http://youtu.be/19ER-rgYNuM. There is also a written piece from 2005 that has a lot of the same concepts. http://psychrights.org/Education/Alternatives05/RoleofLitigation.pdf

    • Hi Jim,

      Thank you for your response. I regret it if I gave you the impression that I was not familiar with or grateful for the David vs Goliath wars you have already waged against the many human rights abuses against the biopsychiatry/Big Pharma cartel. Obviously, you sure made the most ethical choice fighting for the rights of young children being drugged by so called social service/government entities after your immense and mind boggling achievement in winning your case against forced drugging in Alaska and all too many other noble contributions you’ve made to the cause which can never be repaid.

      I simply suggested that given that Dr. Thomas Insel, Head of the NIMH, has now admitted what anyone doing the least research has known for decades: that DSM diagnoses are total invalid junk science with no science, medical evidence or anything else to justify them. Such lack of validity of the very stigma/”diagnosis” that puts all the human rights violations into play could be a huge part of the challenges in court against this fraud. This is backed up by Dr. Paula Caplan’s post today along with her decades of fighting this fraud with articles, web sites, books and talks like many others as you know. I know you have a lot of these books and articles on your web site I’ve visited frequently including Dr. Fred Baughman’s ADHD FRAUD and I know I could sure learn much more about all you have done for the cause though I do follow your work closely because it has so much impact on this horror show.

      I agree you need help with more lawyers and funding. If I recall in one of your cases dealing with Big Pharma documents, you were attacked financially for the funds you raised to help the cause if I understand correctly.

      If you could come up with a way to get donations in a safe way for your own financial safety while helping your crusade against psychiatric fraud and could let us know, I would be more than willing and happy to contribute. I would welcome any other suggestions you might have for ways we can help though some of us must remain anonymous to protect loved ones we’ve been forced to rescue from this monstrous system.

      I truly hope that you don’t take my suggestion about the DSM to mean that I think you should be doing more when you’ve already been a one man miracle worker who has done way more than his share in this struggle.

      Yet, ever since Dr. Insel admitted the fraud of the DSM labels being invalid, I have been outraged with my blood boiling that these fiends have been allowed to go on with business as usual in their march of destruction of so many lives from cradle to grave literally. The fact that they are allowed to say “it’s the best we have” when those like Robert Whitaker exposed in his books and articles that the DSM was created for when psychiatry sold out to Big Pharma and has been expanding ever since to line the pockets of psychiatrists, Big Pharma, the FDA and other corrupt government officials and politicians. So, it is not like this is some innocent “mistake” suddenly found to be untrue, but rather a deliberate assault on humanity for greed, power and profit by the psychopaths who continue to hijack the globe per the book and web site, Political Ponerolgy, and works by Dr. Robert Hare, Dr. John Clark, Dr. Hervey Cleckley, Dr. Martha Stout and many others.

      Anyway, if nothing else, it seems to me that in any cases you might now take on hopefully with remuneration, citing the fact that DSM stigmas have been declared invalid by Dr. Insel and so many other experts could be one of many angles that could be used to expose the human rights violating frauds as I am sure you know.

      I wanted to ask your opinion about how psychiatry is getting away with perpetrating this fraud now that even Dr. Insel has declared DSM stigmas invalid. Isn’t this illegal???? Shouldn’t it be illegal??? If not, that is all the more proof that those targeted by the mental death profession are subject to separate fascist rule that robs the victims of every spec of the law of the land and all human, civil democratic rights when they can be subjected to such mad witch doctoring on a par with blood letting for which any so called normal person could easily sue and make a fortune it seems. Of course, you have exposed this dual system of kangaroo courts for those stigmatized by psychiatry as has Dr. Joanna Moncrieff in articles like Psychiatric Imperialism. And that is all the more reason DSM stigmas are so deadly and need to be abolished and exposed in the courts in my opinion. I wasn’t suggesting you fight more against biopsychiatry in general, but rather against the rot of DSM stigmas that destroy countless lives with “a lot of help from your friends.”

      I didn’t intend to be wishy washy about your question. I have too much admiration and respect for you, your expertise and your mind boggling contributions to the cause to question your expertise or pretend I know what’s best in deciding this issue you raised here.

      Finally, I want to thank you for answering my question and I hope that the above clarifies why I asked it while not wanting to put any more demands on you personally.

      One of the best recent compilations of all the fraud of biopsychiatry and its many harms is the great book, Mad Science: Psychiatric Coercion, Diagnosis and Drugs by well known experts in the field that has received great reviews:

      http://www.amazon.com/Mad-Science-Psychiatric-Coercion-Diagnosis/dp/1412849764

      https://www.madinamerica.com/2013/07/book-review-mad-science-psychiatric-coercion-diagnosis-and-drugs/

      http://csw.fsu.edu/articles/mad-science-psychiatric-coercion-diagnosis-and-drugs-book-launch/

    • Challenging the docs on the basis of Daubert is certainly possible. In fact, I have been successful in preventing at least one psychiatrist from giving such “expert” testimony, but he was allowed to testify as to his “clinical experience.” We need the ability to bring real legal firepower to the effort.

  6. I had a case filed against me, without being told about it, because I refused to sign the voluntary commitment papers. I had been taken to a hospital because I suffered from a sleep walking / talking problem one night ever in my life. I did awake when the paramedics came to my house. I explained my dream to them and agreed to go back to sleep. Five of the paramedics dragged me out of my own bed, while the sixth one told them that what they were doing was illegal because I was neither a danger to myself, nor anyone else.

    They took me to a hospital that was no longer covered by my health insurance. My family had switched health insurance groups due to a prior “bad fix” on a broken bone and “Foul up” with Risperdal by doctors who worked through that hospital. And Rispedal does not cure “bad fixes” on broken bones or concerns of child abuse or belief in the Triune God. So the major tranquilizer was in fact improperly mandated initially by the wife of the “attending physician” at the “bad fix” surgery (she, of course, had neglected to inform me of her conflict of interest).

    This hospital medically unnecessarily shipped me to a doctor who has finally been arrested by the FBI for having lots of patients medically unnecessarily shipped to him, “snowing” patients, and ordering unneeded tracheotomies. Thankfully, the “snowing” / physical and mental torture / psychiatric rape I suffered through did not result in an unneeded tracheotomy.

    The point of my story is that the doctors do whatever they want, when their goal is to cover up malpractice. In my case, according to the medical records, they ended up forging my signature on the voluntary commitment forms. And according to the court documents that hospital had no legal right to involuntarily hold me because I was not even a resident of that county, which apparently was a requirement of involuntary commitment in that county. When I questioned the DuPage county states attorneys about these crimes against me, it became apparent to me, they were apparently aware of lots of similar human rights violations.

    So, I think my opinion on your case, Jim, is that there are probably more important areas for you to concentrate on. The doctor deaths already have ways around the involuntary commitment laws.

  7. I would defer the attempt until we reach a critical mass of understanding about the current state of psychiatry. We are slowly but surely getting there (e.g., recent pronouncements by Dr. Insel about the DSM or the implications of the Wunderink study; the position taken by the UN that coercive psychiatric drugging is torture), but our society and its institutions — the courts, the media, our elected representatives — still largely labor under the assumption that psychiatric drugging, including forced drugging,is “treatment” and psychiatry no different from, say, internal medicine. The lone brave voices (e.g., Drs. Breggin, Jackson, the late Loren Moser) can still be dismissed as “controversial” or outside the mainstream, so the fact that there is a difference of opinion among psychiatrists is not yet enough to dispel faith in the drug-based paradigm. I believe that a challenge to coercive psychiatry on due process grounds is more likely to succeed in the context of a greater recognition of the inherent unreliability of psychiatry and the harm that psychiatric drugs can visit, and we are not there yet. As it stands, NAMI, which, too, is changing but which still continues to confuse pharmaceutical interests with the interests of the mentally ill, could well end up on the other side of any fight before the Supreme Court, and they would be given great deference.

  8. The Supreme Court has not done anything about the weekly death meetings of the executive branch, so I would say it is not a good time to expect SCOTUS to respect human rights.There are at least two justices with histories representing the chemical industry. In my experience as a social worker, years ago, the best support may be the not-psychiatrists in the system. I watched and participated in a meeting that prevented a psychiatrist from placing a person with sexual-abuse trauma in a living situation in an SRO where the risk would have been extreme. There may have been 8 others involved, and the psychiatrist was really jumped. He had to back down and allow a safer housing option. I believe the recovery-through-work practice in Trieste, Italy, relied on line workers to get the socially cooperative businesses going. Line workers often do the work for reasons other than CEO-level pay (pardon my gallows attempt at a joke). In addition, the Open Dialogue practice in Finland has been implemented with cooperative action between line-workers without M.D.’s and M.D.’s who have been able to look at human environments systemically.

  9. Jim, I’m conflicted… While I agree with Peter Dwyer’s comments about the strength of your case, I also agree with Mary Saunder’s assertion that this is not a very rights-friendly SCOTUS. I’m deeply appreciative of all the work you do, and I expect that you probably have a gut feeling about what you want to do here? Whatever you do,just know how valuable your work is to our movement!

  10. If you win the case in the Supreme Court, most people will still be using the public defender in their cases, and facing the same odds but waiting longer to get the bad news. So, no, it’s not worth it from the point of view of actually improving outcomes of commitment hearings.

    It would be worth trying as a way of publicizing alternatives to psychiatry, but the big publicity pay off only comes if the court agrees to take your case.

    On the question of whether it’s worth trying, given the long odds of ever being heard by the Supreme Court, I think that depends on how much of the work comes before they agree to hear the case and how much comes after they agree to hear the case. I mean if you’re doing a huge amount of work just to get them to consider taking the case, then it’s probably not worth it. If most of the work comes after they agree to take the case then maybe it is worth it.

  11. I apologize because I’m going by memory, but the last major case I recall the High Court hearing on mental illness (without criminality) was Buck v Bell. Because of that, I can understand wanting to choose your argument carefully. and I wonder if it might end up hinging entirely on what the officer claims to have brought him to hospital for. However, having been through this process I also understand that it isn’t a lack of access to the courts that keeps us from being heard; It’s fear. I can’t even describe to you the things I’ve endured because I knew what a court would see me as. That’s the other complication: How do you get a Supreme Court Justice to understand that the system cannot work for you. Even if the doctor has never seen you before in his life, a judge will accept his diagnosis on some odd theory of osmosis, and when the standard is clear and convincing, who would you believe? The bigger problem is that Congress stacked the deck when they formed the ADA to avoid making the mentally ill a suspect class, and while it may sound paranoid, I do believe that was their intention. If we cannot get a fair trial for commitment, but we can’t be established as a group that should be protected, what choices do we have? Even with a Congressional Hearing (to close a facility), even though they allowed us to speak, they followed it with baiting the girl with her reason for being hospitalized, and ended with saying, “Since you were able to give evidence in front of a Congressional Hearing, that tells me the facility is making a contribution to the state..”
    Even though it was a while ago, is it possible to argue that due to Congress willful misrepresentation of their findings regarding prejudice, and the 2007 Congressional Hearing on bias in Psychiatry, the recent study showing that research was not being reported, a study establishing bias as a key factor in the new DSM labels, and the recent admittance of dishonesty from the APA in medications and with the public, shouldn’t a less biased remedy be considered?