OPINION: ‘Shoot the messenger’ is no way to fix Alaska’s mental health care struggles

On Sept. 22, the Anchorage Daily News (ADN) published a commentary I wrote about an important paper a group of distinguished, knowledgeable authors wrote. Titled “White Paper on Improving Patient Outcomes, Addressing Treatment Caused Trauma & Injuries, Enhancing Patient Rights, and Grievance Procedures for the Report Required by HB172,” it is well documented, with citations to evidence and authority.

As I wrote, the white paper reveals failures in Alaska’s mental health system by the legislature, the trial courts and appointed attorneys representing people in forcible commitment and drugging proceedings, and the state psychiatrists who testify in them. The paper is available at https://psychrights.org/whitepaper.pdf. A copy was provided to every state legislator.

My commentary drew the ire of Alaska Rep. Andy Josephson — so much so that he wrote a commentary deriding my “scathing attacks” and repeatedly scolding me by name — while never once mentioning the white paper.

First, Josephson expressed a personal discomfort in defending Alaska’s practice of forcibly drugging Alaskans with mental illness. The United Nations has repeatedly stated such action can constitute torture. Our state Supreme Court has ruled the drugs are equivalent to a lobotomy, with other serious side effects.

Still, Josephson noted, “however medieval they may sound, (they) are the law of the land.” This is true, but only because Alaska’s Legislature has made it so. Slavery, denying women the right to vote and Japanese internment camps were also once the law of the land. Josephson wrote he “sadly” accepts this treatment of Alaskans with mental illness as the world we live in. I do not.

While asserting my commentary was “full of errors,” Josephson proffered only one — my conclusion that “the courts have abdicated to the Legislature their separate power to uphold the guarantees of liberty, privacy and due process for persons with mental illness.”

Josephson asserted the 2006 Alaska Supreme Court decision Myers v. Alaska Psychiatric Institute (API) proves me wrong. Josephson is correct that in Myers, the court finally ruled the obvious: If the Legislature is going to allow forcibly drugging persons with mental illness when they present no emergency, the state must at least provide due process. At a minimum, the state must prove that: 1) forcible drugging is in the person’s best interest, and 2) there are no less intrusive alternatives available.

Josephson is either unaware of the reality of such court proceedings or chose to overlook it. The reality is documented in the 2023 white paper. One of its authors is attorney Jim Gottstein, who won the Myers case and has kept up with reality.

In 2009, in another case won by Gottstein, our Supreme Court held that a less intrusive alternative was “available” if it was “feasible.” In a case not involving forced drugging, the Court ruled “feasible” meant what the dictionary said — ”capable of being accomplished or brought about; possible.”

So, you might reasonably conclude that if the less restrictive alternative is possible or capable of being brought about, it’s available — except the court backpedaled in a later case and, as I stated, abdicated its separate power (and duty) to uphold constitutional guarantees of liberty, privacy, and due process.

In a 2019 appeal Gottstein brought against the forced commitment of “Linda M.”, an expert psychiatrist testified about a successful, less restrictive program that had operated in Anchorage until it was defunded. The psychiatrist testified it would have been a good option for Linda. Gottstein argued it was clearly feasible because it had operated “quite well” for seven years.

In a twist of logic, our Supreme Court held that since the less restrictive alternative wasn’t actually available, it wasn’t feasible. In that edict the court rendered one of the Myers constitutional requirements to the whims of the legislature’s funding. I stand by my statement.

According to the ADN, the Legislature’s whims have helped create our mental health crisis. In 2018, the ADN concluded, “It’s easy to make the argument that things are worse now than at any point in recent memory.”

Josephson also said I was “flatly wrong” to “suggest” Alaskans with mental illness “have no rights and are not heard by the hospital and/or the courts.” I did not say that. However, I did write a commentary in April about a study titled “Systemic violations of patients’ rights and safety: Forced medications of a cohort of 30 patients in Alaska” by Dr. Peter Gøtzsche and Dr. Gail Tasch, published in a peer-reviewed journal.

In a review of 30 consecutive court cases, the study showed our trial courts systematically ignored the state Supreme Court’s due process requirements, the state psychiatrists’ testimony disregarded science, and the court-appointed attorneys did little on behalf of their clients. Like the white paper, Josephson makes no mention of this study.

Josephson also said I unfairly compared Alaska’s mental health treatment to that of other countries with successful outcomes based on patient-centered treatment rather than forcible commitment and drugging. I was relating the white paper’s findings. But the white paper also noted the success of such community-based treatment within the U.S., including previously in Alaska.

Josephson derided me for not having touted HB 172′s funding of crisis care centers as an improvement in Alaska’s treatment of persons with mental illness. That remains to be seen. More beds don’t mean better treatment. These centers still allow forcible commitment and drugging, and HB 172 does nothing to fix systemic failures with the trial courts, court-appointed attorneys, and state psychiatrists.

I stand by my commentary that the white paper effectively revealed systemic failures resulting in Alaskans with mental illness being denied due process and forcibly injected with drugs that do not “treat” but instead sedate, with serious side effects.

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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