The Fight for Psychiatric Rights and Accountability

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CONVERSATIONS IN CRITICAL PSYCHIATRY

Series Editor Awais Aftab, MD

In 1982, Alaska-based lawyer James Barry “Jim” Gottstein experienced a psychotic break due to sleep deprivation and was introduced firsthand to the mental illness system. This encounter inspired him to become an advocate for legal representation and for individuals with mental illness. He cofounded the Law Project for Psychiatric Rights (PsychRights) in 2002 and serves as its president. Gottstein also is the author of The Zyprexa Papers,¹ which details how he obtained confidential documents showing that executives had knowingly concealed data related to the drug’s metabolic adverse effects (including diabetes), downplayed risks in published data, and illegally promoted off-label use in children and the elderly. In the book, Gottstein also shares how this led to front-page stories in The New York Times,² and how he became the target of an army of lawyers.

It takes great courage—one might even say recklessness—on the part of lawyers and activists such as Gottstein to expose wrongdoings at great personal risk. As David Healy has commented, “… everything we know about what pharma gets up to comes from legal actions in the US and a handful of lawyers like Gottstein.”³ Half of the book is about Bill Bigley, whose psychiatric commitment and forced medication case enabled Gottstein (his lawyer) to subpoena the Zyprexa Papers and whose rights he defended vigorously, going all the way to the Alaska Supreme Court and resulting in landmark decisions. I left the book with a renewed appreciation for the legal rights of individuals with mental illness.

Aftab: Tell us more about how you got involved in psychiatric legal advocacy.

Gottstein: At age 29, after taking on too much, I got sleep deprived, became psychotic, and was hauled to the hospital in a straitjacket. I was told I would be on psychiatric drugs for the rest of my life and the best I could hope for was to minimize my time locked up in psych wards. Luckily, my mother referred me to a wonderful psychiatrist—Robert Alberts, MD—who told me anyone who gets sleep deprived enough will become psychotic, and I could learn how to prevent that from happening. In other words, I escaped having my career changed from being a lawyer to that of a mental patient. I felt lucky in so many ways and resolved to try and help others not so lucky. There are a number of themes in my book, and one of them is to subtly bust the myth that people who get diagnosed with serious mental illness cannot recover.

Aftab: What have you learned about the ways in which companies misrepresent, misreport, or mis-advertise findings from clinical trials? How can we, as a society, safeguard against this?

Gottstein: Clinical trials are designed to inflate benefits and hide the harms, rather than be a neutral evaluation. One of the ways they do this is through miscoding adverse events, such as coding suicide attempts as lability. Another is by assuming adverse events are not related to the drug. Sometimes companies deliberately conceal or minimize adverse effects, as they did in the case of Zyprexa [olanzapine]. They also rig the benefit side. I found that to make Zyprexa look good in clinical trials, the so-called placebo group included people who had been abruptly withdrawn from Haldol [haloperidol], which is known to exacerbate or even cause severe psychiatric symptoms. The introduction of Zyprexa in the trial relieves some of those withdrawal symptoms, which manifest as clinical improvement compared with placebo. They went even further. Although most people who abruptly withdraw from Haldol experience psychiatric withdrawal symptoms, some people do quite well. They were thrown out of the study. They hijacked the term “placebo washout” to describe this.

There are plenty of things that could be done about this. For example, David Healy, MD, is on a mission to make the trial data available for review at the participant level. The most practical thing that could be done, in my view, is for prescribers to be appropriately skeptical of claims for the latest and greatest drugs. It is amazing to me people prescribe the “latest and greatest” new drug, typically at much greater cost, based on the word of companies, even those that are known to have lied to the professionals and the public.

Aftab: There have been numerous other scandals involving pharmaceutical companies. There is much greater awareness now of the criminal role played by Purdue Pharma in creating the opioid crisis in the United States. The links between the FDA and pharma continue to be a source of concern, as evident recently in the controversy surrounding the approval of aducanumab despite a manifest lack of efficacy. Meanwhile, your advocacy through PsychRights has substantially altered the legal landscape in Alaska with regard to involuntary psychiatric commitment and involuntary use of medications via a series of landmark Alaska Supreme Court rulings.

Gottstein: PsychRights has won 5 Alaska Supreme Court cases, 3 of them on constitutional grounds. For involuntary commitment, the Alaska statute allowed someone to be psychiatrically confined as gravely disabled if their previous ability to function in the community would otherwise deteriorate. In the 2007 Wetherhorn v Alaska Psychiatric Institute case, the Alaska Supreme Court held this to be unconstitutional unless construed to mean the person is “unable to survive safely in freedom.” In other words, the level of disability has to be life-threatening to justify the “massive curtailment of liberty” of locking someone up.

As to court-ordered administration of psychiatric drugs, the Alaska statute said if the person is found to be incompetent to decline the drugs, the hospital is allowed to force into the person any drugs, at any doses the hospital wants. In the 2006 Myers v Alaska Psychiatric Institute case, the Alaska Supreme Court held this was unconstitutional, with the hospital having to also prove by clear and convincing evidence that the forced administration of medication is in the person’s best interest and there is no less intrusive alternative available. This was expanded upon in the 2009 Bigley v Alaska Psychiatric Institute case, with the Alaska Supreme Court ruling the state has to provide a constitutionally required, less intrusive alternative to forced medication or discharge the patient. The continued viability of this is questionable, however, as a result of a more recent involuntary commitment decision holding that the less restrictive alternative to involuntary commitment has to actually exist and be available to the person.

Aftab: You have argued in an article in Alaska Law Review that “lawyers representing psychiatric respondents and judges hearing these cases uncritically reflect society’s beliefs and do not engage in legitimate legal processes.”⁴ What do you think the lawyers representing psychiatric respondents could be doing differently?

Gottstein: Fundamentally, I believe lawyers are appointed to represent psychiatric respondents in order to check the box that the person had a lawyer. They are not expected to present vigorous defenses. These lawyers are assigned too many cases to mount a meaningful defense, especially within the extremely compressed time frame required in these cases.

Lawyers should treat involuntary commitment and forced medication as the high-stakes cases they are. The state is trying to lock their clients up and subject them to mind-numbing, life-shortening chemicals they do not want.

In The Zyprexa Papers, I show how I go about defending these cases in the hope lawyers representing psychiatric respondents will litigate them zealously. Whether or not psychiatrists agree, they cannot accurately predict violence or self-harm—a prerequisite to commitment—and whether or not they believe the drugs are counterproductive and harmful, psychiatric respondents are entitled to have this evidence presented in court on their behalf.

The lack of effective legal representation is very harmful. People are entitled to the least restrictive alternative with respect to psychiatric confinement and the least intrusive alternative with respect to forced medication. By not challenging the proposed involuntary commitments and forced medication, people are not being allowed more humane alternatives. If people’s rights were being honored, more of these humane alternatives would have to be provided.

Aftab: Decisions to hospitalize when confronted with the risk of homelessness, incarceration, serious physical neglect, or physical harm to self or others are complex, ethical questions. I am reminded of something the psychiatrist Paul Gosney, MD, said in a debate in the British Journal of Psychiatry: “Much of modern psychiatric practice feels like we are trying to rescue people from damaged lives. If one of our tools is going to be taken away, then there needs to be a corresponding commitment from society to do better by all its members.”⁵ Honestly, I am highly sympathetic to efforts to reduce involuntary hospitalization and for there to be robust legal safeguards, as you advocate, but I am skeptical that this on its own will result in good outcomes unless there is a corresponding commitment from society to do better by individuals with psychiatric disabilities.

Gottstein: I certainly agree on the need for commitment to noncoercive, nonharmful approaches. If the system was not allowed to confine people who do not meet commitment criteria and force drugs into people against their will, society would have to find other ways to deal with people who are disturbing and thought to be mentally ill. I think of involuntary commitment and involuntary medication as the path of least resistance for the hospital, and it should be far more difficult.

For example, in the Myers case, Loren Mosher, MD, the former chief of schizophrenia research at the National Institute of Mental Health and the principal investigator in the Soteria House study, testified under oath that involuntary treatment should be “difficult to implement and used only in the direst of circumstances,” and stated⁶:

“[I]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.”

This is the needed approach, and patients are entitled to it.

Aftab: You say that the use of “nonemergency involuntary medication can never meet the legal standard of being proven by clear and convincing evidence that it is in the person’s best interest and there are no less intrusive alternatives.” That is a pretty strong claim.

Gottstein: First, it is important to distinguish the “police power” justification for forced medication versus the parens patriae justification. The police power justification is to stop an immediate threat of great harm. In Alaska, it is called an emergency and has very strict requirements. It is for situations like when the tiger attacking Roy was put down with a shot of Haldol. In contrast, the parens patriae justification is based on a judicial determination that the person is incompetent to make a decision about the medication, and therefore, that the government must step in as a parent and make the decision for the person in their best interest.

The legal standard for that is to prove by clear and convincing evidence it is in the person’s best interest and there are no less intrusive alternatives. I do not believe either can be proven by the clear and convincing standard that has various definitions depending on the state, but basically means “highly probable.”

As an aside, in the US Supreme Court case of Addington v Texas, the patient argued that since the state was seeking to lock him up like a criminal, they should have to prove the right to do so beyond a reasonable doubt. The Supreme Court held that psychiatrists could never prove their case beyond a reasonable doubt and, since the confinement was not for a punitive purpose, they had to prove it by clear and convincing evidence instead, which is a higher bar than the more-likely-than-not standard in other types of civil cases. This was for involuntary commitment, but it has been held that the same standard applies to involuntary medication. It does vary by state, but I think it is the correct constitutional standard.

In my view, based on the evidence, the state can never prove it is highly probable that forcing psychiatric drugs into an unwilling patient is in their best interest in light of the abysmal outcomes and physical harm they cause, including early death. I also do not think it can legitimately be proven by clear and convincing evidence there is no less intrusive alternative that could be provided.

I know people may disagree with me and, in fact, I tended to lose at the trial court level. I think that was because of the practical problem that there was no actual less intrusive alternative to which my client could be sent. It is my view no legitimate determination can be made that it is highly probable forcing psychotropic medication into someone is in their best interest and there is no less intrusive alternative.

Aftab: For the record, as a clinician, I am not persuaded by your stance on the involuntary use of medications, and based on my experience of working with the courts, neither are they. But I appreciate your engagement, and I am sure your arguments will give many readers much to think about. Thank you.

Dr Aftab is a psychiatrist in Cleveland, Ohio, and clinical assistant professor of psychiatry at Case Western Reserve University. He has been actively involved in initiatives to educate psychiatrists and trainees on the intersection of philosophy and psychiatry. He is also a member of the Psychiatric Times™ Editorial Board.

The opinions expressed in the interviews are those of the participants and do not necessarily reflect the opinions of Psychiatric Times™.

References

1. Gottstein J. The Zyprexa Papers. Jim Gottstein; 2020.

2. Berenson A. Eli Lilly said to play down risk of top pill. New York Times. December 17, 2006. Accessed July 20, 2022. https://www.nytimes.com/2006/12/17/business/17drug.html

3. Healy D. The Zyprexa Papers: this book had to be written. Samizdat Health. March 21, 2020. Accessed July 20, 2022. https://samizdathealth.org/zyprexa-papers/

4. Gottstein JB. Involuntary commitment and forced psychiatric drugging in the trial courts: rights violations as a matter of course. Alaska Law Review. 2008;25(51):51-105.

5. Gosney P, Bartlett P. The UK Government should withdraw from the Convention on the Rights of Persons with Disabilities. Br J Psychiatry. 2020;216(6):296-300.

6. Myers v Alaska Psychiatric Hospital. Transcript. PsychRights. Accessed July 20, 2022. http://psychrights.org/states/alaska/caseone/30-day/3-5and10-03transcript.htm