1. The Courts’ Potential Role in Transforming Mental Health Care in Alaska 2005 Mental Health Consumer & Family Leadership Conference April 13, 2005 By James B. (Jim) Gottstein, Esq.

2. Objectives Sense of the Courts’ Potential Role in Transformation of the Mental Health System Towards Recovery Understanding of Possible Types of Court Action. Recognition that Courts Can Only Be Part of Solution Discussion

3. Litigation Can Cause Great System Change Desegregation Litigation In Alaska: –Molly Hootch (Education) –Cleary (Prisoners’ Rights) –Weiss (Mental Health Trust)

4. Types of Legal Remedies Precedent – “This is the Law” Injunctions – “You Are Ordered to...” Declaratory Judgment – “Your Rights Are” Damages – $$$$ –Class Actions – Really for mass torts Lawyers Make Out/Most Class Members Don’t MH Trust as Class Action was a Mistake 42 USC §1983 – Liability (fed ct) for violation of civil rights

5. Illegal Aspects of the Alaska Mental Health System Commitment Forced Drugging –Civil –Prison Informed Consent “Tying” Services & Entitlements “Meaningful Involvement in Grantee Agencies” Treatment Planning AMC Title 21 (Quasi-Institutional Housing)

6. Others? (suggestions) Gender Choice for Intimate Care Staff? AS 47.30.840 Rights?? ? ? ? ?

7. These Illegalities Can Hinder Recovery (worsen prognosis) Forced Drugging Informed Consent Lack of Effective Alternatives Retraumatizing Victims of Abuse Lack of Housing

8. Civil Commitment Illegalities Less Restrictive Alternative Dangerousness –Gravely Disabled Perjury Inadequate Representation? Solutions Strategic Litigation/Negotiation Alternatives Good Representation 42 USC §1983 Action

9. Forced Drugging (Civil) Illegalities Best Interests Less Restrictive Alternative Perjury Inadequate Representation? Solutions Strategic Litigation/Negotiation Alternatives Good Representation Guardianships? 42 USC §1983 Action

10. PsychRights’ Forced Drugging Alaska Litigation Strategy Negotiations have Failed Forced Drugging -- Myers Case –Least Restrictive Alternative? –Soteria-Alaska in Wings Sue to enforce if get Ruling Potentially 42 USC §1983

11. Forced Drugging (Prison) Illegalities (Bavilla Case) Not Adversarial Not Allow Confrontation Not Allow Presentation Not Unbiased Decision Maker Insufficient Notice Not Allow representation? Sell criteria? –Sufficient state interests, necessary, achieve state interests, medically appropriate, least intrusive means, court decide Solutions New Case Alternatives

12. Informed Consent under AS 47.30.837(d)(2) (Inpatient) All information that is material to the patient's decision to give or withhold consent, including: –an explanation of the patient's diagnosis and prognosis, or their predominant symptoms, with and without the medication; –information about the proposed medication, its purpose, the method of its administration, the recommended ranges of dosages, possible side effects and benefits, ways to treat side effects, and risks of other conditions, such as tardive dyskinesia; –a review of the patient's history, including medication history and previous side effects from medication; –an explanation of interactions with other drugs, including over- the-counter drugs, street drugs, and alcohol; and –information about alternative treatments and their risks, side effects, and benefits, including the risks of nontreatment.

13. Informed Consent Illegalities Prognosis Efficacy Toxicity Alternatives Battery Solution Find a Plaintiff Tell the Truth Alternatives –ACMHS?? –CHOICES in the Wings Informed Consent Case Drafted

14. “Tying” Services & Entitlements Illegalities All from us Meds or nothing Meds or no housing Meds or hospital Meds or jail Solutions Litigation? Independent Case Management? –Alternatives

15. “Meaningful Involvement in Grantee Agencies” Illegalities Sufficient consumer and family membership on Board of Directors for meaningful input Grant Violation Solutions Litigation? Get in Regulations?

16. Treatment Planning Illegalities Lack of Involvement in Treatment Plan Violation of Federal & State law? Grant Violation Solutions Litigation? Alternatives

17. AMC Title 21 (Quasi Institutional Housing) Illegality Discriminatory Solution Abolish Has this Been Fixed?

18. Gender Choice For Intimate Care Illegality Right to choose? Solution Right to Choose Legislation Litigation

19. AS 47.30.825 Rights Illegality Go down list Solution Criminal Charges under AS 47.30.835? Litigation

20. Bringing Legal Pressure PsychRights -- Mission is Forced Drugging –Pro Bono Recruitment Set Disability Law Center Agenda –PAIMI Council –Board of Directors Others? –Consumers Counsel type of program??

21. Discussion