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The Courts’ Potential Role in Transforming Mental Health Care in Alaska

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. Objectives. Sense of the Courts’ Potential Role in Transformation of the Mental Health System Towards Recovery

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The Courts’ Potential Role in Transforming Mental Health Care in Alaska

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

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

  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. 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 Forced Drugging (Prison)

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

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

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

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

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

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

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

  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

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