July 18, 2001
Good morning. My name is Tina Minkowitz and I am a law graduate and a survivor of psychiatric abuse. In 1997 I spent 6 months observing hearings in the Brooklyn, NY Mental Hygiene Court and wrote a report on those hearings which is the basis of my testimony today. I was also present at some of the Thomas court hearings. I will speak about problems with existing judicial procedure on forced treatment, and propose alternative approaches. The report, which I will make available to you, is entitled, Do Psychiatric Inmates Have the Right to Refuse Drugs? An Examination of Rivers Hearings in the Brooklyn Court.
The Rivers case held that mental illness is not synonymous with lack of capacity. Nevertheless, lower courts have allowed lack of capacity to be established by psychiatric diagnosis, particularly of paranoia, unsupported by specific factual evidence connecting the diagnosis to lack of capacity in the individual case. Lower courts have also accepted resistance-based conduct and beliefs as evidence of lack of capacity. This includes refusal to speak to psychiatrists, belief that one is a political prisoner, belief that involuntary commitment was illegal, expression of hostility towards psychiatrist, and similar types of conduct and beliefs. It also includes absence of belief that one is mentally ill, and disagreement with the need for proposed treatment.
Rivers requires clear and convincing evidence. It is difficult to imagine how such prejudice and stereotype can constitute clear and convincing evidence. Yet that is the routine state of affairs as found in my report, and by other observers as cited in that report. Also, the Americans with Disabilities Act requires individualized and fact-based objective determinations when making judgments based on a disability. The ADA clearly applies here. Legislation should support and be consistent with the important public policies articulated by Rivers and the ADA which reflect our evolving understanding of fundamental rights.
On the issue of best interests, Rivers held that institutional convenience and other concerns unrelated to the well-being of the patient and those around her (referring to the emergency police powers) could never overcome the patient's interest in refusing treatment. However, such concerns are routinely accepted by lower courts. Furthermore, Rivers acknowledged the seriousness of the danger posed by psychiatric drugs, but lower courts are usually uninterested in this, to the extreme of ignoring respondents' medical conditions that may be adversely affected. Rivers requires courts to consider less intrusive alternatives, but there is no indication that courts do so.
I will now read some excerpts and summaries from the 1998 report.
The following were offered on three occasions to show lack of capacity: Lack of belief that she is mentally ill (8/5/97 #1), lack of insight into the need to take medication (8/14/97 #1), "lack of insight, lack of judgment, can't make reasoned decision because of mental illness" (8/12/97 #3).
"Have you explained to her the benefits and the risks?" "Yes, many times." "Do you think she lacks the capacity to make a reasoned decision?" "Yes - it's overshadowed by her psychosis." (10/28/97 #1)
6/24/97 #2, "she says she's been kidnapped, doesn't have a mental illness, wants to go home." This is an example of her "delusions," and "lack of insight and judgment."
Believing that one is a political prisoner, refusing to talk to the psychiatrist and refusing to come to court were labeled paranoia. (8/12/97 #3) Being "socially isolative" (9/23/97 #1) and being "suspicious and guarded" when talking to the psychiatrist (10/14/97 #2) were similarly used to establish lack of capacity.
9/30/97 #3, "Did you attempt to explain the risks and benefits to her?" [Yes.] "And what was her answer?" "That I needed a bullet through my head."
In all these cases, the courts accepted generalized or punitive opinions as expert testimony to establish lack of capacity, contrary to the standard set in Rivers and the ADA requirement of fact-based objective determinations free of disability-based stereotypes.
Judges ignore respondents' own testimony as probative of either capacity or their best interests. Here are some examples of respondents' testimony.
8/5/97 #1 She doesn't want chemicals in her body. "The medications change your thinking and I don't want to change my thinking."
9/30/97 #3: "I take it but when it doesn't make me feel good I don't."
10/21/97 #2: He couldn't concentrate and he couldn't do other things he used to do. "I'm a very calm person, now I can't sit still."
6/7/97 #7: "I'm not taking it." "I don't want it." "These are my feelings."
6/10/97 #2: "What did the doctor tell you the medicine was for?" "He said it was to make me feel better." "And did it make you feel better?" "No."
7/8/97 #2: "He's in a free country, America, he has a right to hear the voices, and a right not to take medication. He understands he will always hear the voices and feels he can live with them."
In each of these cases, the judge granted a forced treatment order.
There are several problems with application of the best interest part of the standard. First, judges fail to require meaningful proof that treatment is in the individual's own best interest.
On four occasions, in answer to the question "Why did you choose this medication for this person?" the psychiatrist answered "because it's available in long-acting (decanoate) form (6/24/97 #1, 7/15/97 #3, 9/9/97 #1, 10/28/97 #1). This concern is clearly about institutional convenience rather than the patient's best interest, contrary to the requirements of Rivers. On another occasion, the psychiatrist couldn't answer why the treatment was appropriate for his patient's mental condition. (7/8/97 #2).
Other cases: Haldol "calms him down," 9/16/97 #1; she is "more pleasant and agreeable" after being injected with haldol (9/30/97 #3); he was "more pleasant and agreeable" when he took olanzapine for a few days (9/9/97 #1).
9/9/97 #1: Psychiatrist wants to return him to mother, only support system is family. They don't want him back without medication.
I note here that making the individual more pleasing to others is an impermissible consideration similar to institutional convenience.
Secondly, adverse effects are not given full or adequate consideration..
9/11/97 #1 This was the case of an elderly woman with a heart condition (heart attack the previous year) and cancer. She had been taking haldol but stopped. MHLS asked, "Will haldol have any effect on her heart condition?" but accepted the psychiatrist's answer, "No," without further challenge. An observer noticed the PDR in the adjoining clerk's office, which would have clearly contradicted this testimony.
Before a different judge in another case, the following evidence was brought out: There was another doctor's report, in the man's record, saying he's taking AZT, possible dementia. Psychiatrist testifying was not aware of the AZT, and in response to the question, "Doesn't that mean he has HIV?" the psychiatrist answered that he'd have to give an HIV test.
The judge was disturbed by this lack of familiarity with the patientís medical condition when prescribing drugs with serious medical effects. But it was obvious that his reaction was atypical in that court.
Thirdly, the possibility of less intrusive alternatives is rarely discussed and, in my observation, it has never been taken seriously. The obvious possibility, psychotherapy or counseling, is treated dismissively. I have heard a psychiatrist testify that his purpose in giving therapy was to get the patient to agree to take medication. A reliable observer has told me that this was also evident in the Thomas case.
I make the following recommendations for action.
1) New York should ban forced electroshock. This step would implement policies recommended by the National Council on Disability, an independent federal agency mandated to make recommendations on disability policy, in its report issued in January 2000. Among its recommendations are:
* Public policy needs to move in the direction of a totally voluntary community-based mental health system that safeguards human dignity and respects individual autonomy.
* People labeled with psychiatric disabilities should have a major role in the direction and control of programs and services designed for their benefit.
* [P]ublic policy should move toward the elimination of electro-convulsive therapy and psycho surgery as unproven and inherently inhumane procedures.
Limiting the use of electroshock to treatment given with voluntary and competent informed consent would move NY in the right direction.
2) Bill A9081 should be amended to remove the suggested capacity protocol. Virtually all the suggested factors are subject to misuse or reflective of stereotype and prejudice.
3) Until it is possible to eliminate all forced treatment, the judicial standard should be simple and reflect the public policies stated above, by giving preference to respondent's expressed wishes and limiting capacity to the narrow question of ability to understand what is at issue, e.g. electroshock or a psychiatric drug. The person need not consider this to be treatment or agree that she/he has a mental illness or agree with the psychiatrist's assessment of the risks and benefits. Diagnostic categories, resistance to hospitalization, and sociability should not be permissible factors. Reasonable accommodation should be made for actual or perceived disability in communication and/or cognitive capacity. Expert testimony should be inadmissible on the issue of capacity, and hearings should be bifurcated so that testimony on need for treatment is clearly separated from capacity issue.
4) Substituted consent of an appointed guardian is of dubious constitutionality
in NY and has the potential to increase rather than limit forced treatment.
Bill A8960 should be amended to remove that provision.