OPINION: The rights of Alaskans with mental illness are being violated – by the state, the courts and their own attorneys

A recently released report on forcible commitment and drugging cases documents systemic violations of the constitutional rights of Alaskans with mental illness. The legal system is doing this in secret tribunals that pretend to provide due process but are a rubber-stamping sham.

The process is driven by state institutions and psychiatrists who insist on archaic treatment opposed by science. The process is enabled by passive courts and an underfunded Public Defender Agency (PDA).

How did we get here? More important, how do we stop this madness?

In 2016, Dr. Peter Gøtzsche testified in a hearing where the state sought to forcibly drug a person with mental illness. In connection with that case, he reviewed three other cases. All four failed to comply with Alaska Supreme Court decisions establishing psychiatric patients’ due process rights.

Dr. Gøtzsche filed a request with the Superior Court to permit review of 30 consecutive cases to determine if the proceedings met constitutional due process requirements. Confidentiality would be protected.

It is important to note, these cases involved allegedly mentally ill Alaskans who had committed no crimes. These proceedings are almost always secret, purportedly to protect the privacy of the individual -- referred to as “the respondent.” The secrecy also means no accountability for the courts, the state or the public defenders appointed to represent nearly all respondents.

It took Dr. Gøtzsche more than four years and two trips to the Alaska Supreme Court to get access. The Alaska Psychiatric Institute (API) and the Public Defender Agency (PDA) fought the request.

API’s desire for secrecy is understandable -- given multiple, critical ombudsman reports and the unfavorable news reporting it’s received. It seems the PDA would welcome a review to ensure their clients’ rights -- unless it might reflect badly on them.

The report, titled “Systemic violations of patients’ rights and safety: Forced medications of a cohort of 30 patients in Alaska” by Dr. Gail Tasch and Dr. Gøtzsche is published in Psychosis, a peer-reviewed journal.

Of the 30 petitions for involuntary commitment, 29 resulted in judges ordering commitment. In the one that didn’t, the respondent requested a jury, which found in the patient’s favor. Forcible drugging was ordered in 27 of the remaining 29 cases.

One due process requirement is the court must determine forcible drugging is in the patient’s “best interest.” The report includes scientific evidence that forcible drugging with meds that tranquilize rather than treat -- and come with debilitating negative effects -- is not in a patient’s “best interest.” This science was consistently ignored by the state psychiatrists, the PDA and the courts. Moreover, in 26 cases, patients’ wishes, fears and experiences with the proposed drugs were ignored.

Another requirement courts must address is whether less intrusive treatment is feasible. The report provides compelling evidence of the effectiveness of “less intrusive treatment” -- such as psychotherapy or combining therapy with a well-established, less harmful, more effective class of medication called benzodiazepines. This requirement was ignored or summarily dismissed by the state psychiatrist and the PDA presented no contrary evidence.

Our state Supreme Court has noted the inherent conflict of state psychiatrists tasked with treating individual patients while maintaining order and managing understaffed institutions (by tranquilizing patients). But the judges overwhelmingly deferred to the unopposed testimony of state psychiatrists, even while expressing, “I don’t have confidence in the doctor,” and even when the appointed Court Visitor stated the respondent was competent.

Another due process requirement is whether the person is competent to refuse medication. In more than half the cases, there was no mention of this.

Each of these cases represents a person not charged with a crime who is fighting against being strapped to a gurney and forcibly injected with a drug that our state Supreme Court has equated to a chemical lobotomy. The report covers just 30 people. What of the hundreds or thousands that came before and since?

The report found the PDA did little to challenge the state attorney and they never presented opposing expert testimony.

The PDA made headline news recently when it announced it would stop accepting serious criminal cases in Nome and Bethel because it lacked the resources to provide representation “consistent with its ethical and constitutional obligations.”

As a former prosecutor, my cases were fiercely contested by public defenders. They fought to dismiss charges and suppress evidence. They requested public jury trials. My witnesses were vigorously cross-examined. My expert’s testimony was met with opposing expert testimony. Convictions were routinely appealed.

Earlier this month, the ACLU of Alaska made headlines when it sued the state for forcibly medicating a convicted murderer who had been voluntarily taking psychiatric medication but then wanted to stop because of debilitating side effects. The lawsuit claims, “the (state) conducted the procedure so haphazardly, it blatantly denied his constitutional right to procedural due process.”

Convicted murderers still have rights. So do people with mental illness. It’s time for professed advocates -- like the PDA, the ACLU, the Disability Law Center, and the Mental Health Trust Authority -- and our courts to ensure the rights of psychiatric patients. The recent report provides powerful steppingstones for action.

Fifteen years ago, an article in the Alaska Law Review sent to every Alaska lawyer and judge described decades of hidden, sham proceedings that forcibly committed and drugged Alaskans against prevailing science. Noting the Supreme Court landmark decisions requiring due process for the mentally ill, the author warned,

“Unless these decisions are honored in practice, psychiatric respondents’ statutory and constitutional rights will continue to be violated.”

The report reveals that prophesy has come true. Secrecy has enabled this travesty. So, it’s time for journalism to step up. Journalism is critical to keeping elected officials, government agencies and the judiciary honest.

It’s time for Alaskans with mental illness to have rights, advocacy, protection of the law, and journalistic attention at least equal to criminals.

Val Van Brocklin is a former state and federal prosecutor in Alaska who now trains and writes on criminal justice topics nationwide. She lives in Anchorage.

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