Legislature(2007 - 2008)CAPITOL 106
03/31/2007 12:30 PM House HEALTH, EDUCATION & SOCIAL SERVICES
| Audio | Topic |
|---|---|
| Start | |
| HB113 | |
| HB173 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SJR 1 | TELECONFERENCED | |
| *+ | HB 173 | TELECONFERENCED | |
| += | HB 113 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 173-INVOLUNTARY PSYCHOTROPIC DRUG TREATMENT 2:33:09 PM CHAIR WILSON announced that the next order of business would be HOUSE BILL NO. 173, "An Act relating to court approval of involuntary administration of psychotropic medication; and providing for an effective date." 2:33:56 PM REBECCA ROONEY, staff to Representative Peggy Wilson, Alaska State Legislature, introduced HB 173, on behalf of the sponsor. She paraphrased from the following written statement [original punctuation provided]: The purpose of HB 173 is to bring Alaska statutes into conformance with the Alaska Supreme Court decision in Meyers v. API, which was decided by the court in June of 2006. The court's decision provides additional patient protection when authorizing involuntary administration of psychotropic medications. These additional protections have already been put into practice. Current statutes provide that when a designated evaluation or treatment facility wanted to medicate an involuntarily committed patient (in a non-emergency situation) the hospital had to prove to a court only that the patient (1) was presently incapable of giving or withholding informed consent, and (2) had not in the past, while competent, reliably indicated a wish not to be treated with such medication in the future. Once those showings were made the court was required to approve the hospital's request to administer the medication. This past year, the Alaska Supreme Court decided in Myers v. API, the current statute was unconstitutional as written. The court based its decision on the Alaska Constitutional guarantees of liberty and privacy to Alaska's citizens, and on the fact that psychotropic medication, which is intended to alter a recipient's mind, is both very intrusive into the recipient's life, and may cause potentially devastating side effects. In Myers vs. API the court ruled that in addition to the criteria in current statute the court must be convinced that the recommended psychotropic medication treatment is in the best interest of the patient and also be convinced that there is no less intrusive alternative available for the recommended course of treatment. This court decision has provided additional protections for patient's rights. HB 173 will put those protections into statute. Please pass HB 173 out of committee. 2:36:22 PM REPRESENTATIVE SEATON asked whether the proposed use must be a pre-authorization, not a post justification for the administration of psychotropic drugs. MS. ROONEY clarified that this is to satisfy a court order to approve the administration of psychotropic drugs. 2:37:08 PM REPRESENTATIVE SEATON referred to the bill on page 2, sub- subparagraph (j), and noted that for a person who has had several episodes the court would require the court order for each episode, unless the commitment period is extended. MS. ROONEY deferred to the Department of Law (DOL). 2:37:49 PM STACIE KRALY, Chief Assistant Attorney General, Statewide Section Supervisor, Human Services Section, Civil Division, Department of Law (DOL), advised the committee that when an individual is involuntarily committed they are committed for 30 days and the court order for medication is for 30 days; for subsequent commitments, the court order for forced medication would be concurrent with the period of the commitments. REPRESENTATIVE SEATON re-stated his question. He asked for confirmation that when someone is committed at one time, and is administered drugs, and then is admitted with the same condition six months or a year later, the court would need to make another finding for use of the drugs. MS. KRALY concurred. 2:40:02 PM REPRESENTATIVE NEUMAN relayed a story of an individual who was unable to function, despite the assistance that was offered to him, and concluded that this bill would be helpful in a similar case. 2:41:04 PM CHAIR WILSON opened public testimony. 2:41:21 PM TIM FARRELL informed the committee that he is a resident of Fairbanks, and directed the committee's attention to his written testimony included in the committee packet. Mr. Farrell stated his opposition to HB 173 and said that the use of psychotropic drugs is very dangerous for the patient. He opined that these drugs are mind-altering and can cause violent and suicidal effects. CHAIR WILSON observed that this bill makes the court finding more rigorous, prior to the administration of these drugs. MR. FARRELL asked the committee to review his suggested amendments. REPRESENTATIVE CISSNA asked for a copy of Mr. Farrell's amendments. 2:44:13 PM CHAIR WILSON provided copies of Mr. Farrell's email for the committee members, which read [italics designate deletions]: *Section 1. AS 47.30.839(g) is repealed and reenacted to read: (g) the court shall may approve the proposed use by a facility of a psychotropic medication if the court determines, by clear and convincing evidence, that (1) it does not go against the person's health care choices previously determined and documented in a mental health advance directive, as described in AS 13.52; (2) it does not run contrary to the patient's history of health care decisions so that a person being considered by a psychiatric facility for forced drugging is not prevented from actively seeking alternative and recognized (licensed or certified) health care practitioners to diagnose and treat medical/physical ailments; (1) (3) the patient does not have the capacity to give or withhold informed consent (not just disagreeing with recommended psychiatric treatment) regarding the patient's treatment s described under AS 47.30.837 and did not have the capacity at the time of previously expressed wishes under (g)(2) of the Section; (2) (4) the facility must document their efforts to achieve informed consent as informed consent; and The proposed use of the psychotropic medication is in the patient's best interest; and (3) (5) the facility/psychiatrists must actively allow alternative approaches to helping someone who is in an emotional crisis of lesser or greater degree and actively allow complementary treatment to occur on premises by state licensed/certified health care practitioners. There is no less intrusive alternative treatment available. End of revisions. 2:44:28 PM FRANK TURNEY stated that he is a resident of Fairbanks, and stated his support for HB 173. He said that the bill will protect the rights of patients by the increased restrictions against involuntary drugging by the court system. Mr. Turney expressed his support for the amendments suggested by Mr. Farrell and relayed a personal story regarding the drug Prolyxin. He noted his support for the court action regarding Faith J. Myers v. Alaska Psychiatric Institute; however, the Supreme Court failed to rule on incarcerated mental health patients in jails and prisons. Another area of his concern is about how often recommendations for the treatment of illicit drug use are more drugs versus an alternative treatment. He concluded by asking the committee to consider that the bill does not apply to the administration of medication to prisoners confined in correctional institutions. 2:48:17 PM CHAIR WILSON responded that the committee has not looked at that point. She asked for his opinion of medications in general. 2:48:39 PM MR. TURNEY replied that, as a former twenty-year mental health client from Oregon, he survived his treatment only with the intervention of his family. He gave personal examples of the long and short term effects of psychotropic drugs. Mr. Turney encouraged the consideration of holistic treatment alternatives instead of forced medication. He urged the committee to adopt Mr. Farrell's amendments to HB 173. 2:51:37 PM REPRESENTATIVE NEUMAN opined that the change suggested by Mr. Farrell for Sec. 1, subsection (g), from "the court shall" to "the court may" appears to make the language stronger. 2:52:11 PM CHAIR WILSON informed the committee that guidelines were set out during the lawsuit. She asked her aide to provide the criteria required prior to approval of the order for the use of the drugs. 2:53:02 PM MS. ROONEY explained that, under AS 47.30.837(d)(2), guidelines were developed regarding how the court is to determine what is in the patient's best interest. The guidelines are: 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 administration, the recommended ranges of dosages, possible side effects and benefits; ways to treat side effects and risks of other conditions such as tartive disconesia ... ; a review of the patient's history including medication history and previous side effects from medications; 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 non-treatment; also the extend and duration of changes in behavior patterns and mental activity effected by the treatment; the risks of adverse side effect; the experimental nature of the treatment; its acceptance by the medical community of the state; and the extent of intrusion into the patient's body and the pain connected with that treatment. 2:54:30 PM REPRESENTATIVE GARDNER expressed her understanding that Representative Neuman is asking whether the judge is required to approve the order, if all of the conditions are met. 2:55:13 PM CHAIR WILSON directed the question to the DOL. 2:55:21 PM MS. KRALY speaking from a drafting standpoint, advised that the use of the word "shall" is a mandatory action, and "may" is more permissive. She opined that in this context, meeting the criteria as read by Ms. Rooney, and meeting a clear and convincing evidentiary standard, will require the issuance of the order by the court. 2:56:29 PM REPRESENTATIVE GARDNER expressed her belief that all psychotropic drugs are somewhat experimental and it appears that under the current language, a judge will be required to approve the order after conditions in paragraphs (1), (2), and (3) are met. MS. KRALY answered no. She added that all four of the standards would have to be met, and she reviewed the four criteria. 2:57:53 PM CHAIR WILSON said that under subsection (g) there are only three criteria listed and she read: (1) the patient does not have the capacity to give or withhold informed consent regarding the patient's treatment as described under AS 47.30.837 and did not have the capacity at the time of previously expressed wishes under (d)(2) of this section; MS. KRALY explained that those are two distinct findings that the court would have to make in addition to the two findings by the Alaska Supreme Court in the Myers decision. She opined that there are four evidentiary burdens that the state must meet before forced medication can be administered. 2:58:42 PM REPRESENTATIVE GARDNER remarked: ... if the court makes those four findings, does not [sub]section (g) say the court shall approve the proposed use, if these findings are true? MS. KRALY answered: If all four of them have been met by clear and convincing evidence, the standard is the "shall", that means the court shall order the administration ... of drugs .... So, the answer to your question is yes. 2:59:23 PM CHAIR WILSON said: In the past they only had to do the first two ... So we've added two more safeguards for the patient so that there's a lot more criteria that has to be met. Is that correct? 3:00:02 PM MS. KRALY agreed. [Temporarily lost reception] 3:00:09 PM CHAIR WILSON asked: ... I just want to make sure that, that with the ruling of the court these four now, meet that requirement that the court upheld. 3:00:13 PM MS. KRALY said yes. 3:00:16 PM REPRESENTATIVE GARDNER remarked: So, I understand that if we change the word from "shall" to "may", in [sub]section (g) it's a sea change in terms of how we do treatment. Because it would give the court the discretion to say, even if all those findings are met, the court could choose not to. What would you think about doing that? MS. KRALY answered: Personally, ... I don't think ... I could comment on that particular question, but I would agree that if you changed the word "shall" to "may" it would give the court discretion in those instances even when all four have been met, or the standards have been met to still not grant the petition for forced medication. 3:01:30 PM REPRESENTATIVE NEUMAN questioned whether, with the four criteria, does the court have the discretion to say ... yes or no with that word "shall" .... MS. KRALY answered: Well, under traditional statutory construction the word "shall" would be a mandatory requirement. I do believe that the courts have inherent discretionary authority to make decisions and now with this Myers decision, the best interest requirement gives the court a lot of discretion to decide what is in the individual's best interest, irrespective of the other three criteria that are required. So, the "shall" although, under general statutory construction, would require a mandatory action by the court system the court system, in these instances, have in many instances, have broad discretionary authority to make appropriate decisions on a case by case basis. 3:03:00 PM REPRESENTATIVE CISSNA referred to one of Mr. Ferrell's suggestions that complementary medicine is beginning to be licensed and certified in Alaska. However, institutions of last resort are often focused on the medical model. She expressed her concern that, even with the Myers decision by the court, Sec. 1 paragraph (3) states "there is no less intrusive alternative treatment available." Representative Cissna observed that if the medical staff at the institution does not like complementary treatment, it would not be available. She urged use of the word "may" or the elimination of paragraph (3). CHAIR WILSON asked whether changing "shall" to "may" would satisfy the lawsuit. 3:05:46 PM MS. KRALY replied that the change would give a broader protection in the administration of the drug, and she restated that the court could decide to not grant a petition for use of the drug, even if all four criteria were clearly established. 3:06:21 PM REPRESENTATIVE FAIRCLOUGH remarked: ... truly, it feels like we're debating a word that already has permissive language in there. And I appreciate the person who's offered the amendment, but "shall" is already a "may" in this particular context, if you go down to line 2, ... a judge, in his discrimination, not line 2, but number 2, [HB 173, Sec. 1, (g)(2)] all he has to do so he doesn't have to administer the drug, if he ... make a finding that is not in the patient's best interest. ... So, I think we can change it ... to "may" easily, because it's already there, or we could leave it .... The judge can look to that, not modify the language that we have before us, and still could ... make a determination that it's not in the best interest and then the "shall" goes away. 3:07:42 PM REPRESENTATIVE SEATON recalled testimony regarding the side effects of drugs. He questioned whether the judge ever hears discussion about which particular medication is being proposed or if the specific choice of medication is left to the facility. MS. KRALY explained that the statewide practice for hearings is that when a petition for forced medication is filed the questions are directed towards the specific medication being proposed for that individual. The judge hears testimony about the specific drug and its side affects, interactions and benefits. The approval of the petition is not a blanket approval for any medication. 3:10:21 PM REPRESENTATIVE SEATON noted that the language in the bill is not specific in that regard. 3:10:41 PM [3:10:28 to 3:11:30 testimony obscured by outside noise] REPRESENTATIVE GARDNER asked Mr. Farrell whether he, personally, could conceive of a situation for the endorsement of a psychotropic medication being administered to an unwilling patient. 3:11:40 PM MR. FARRELL responded that it goes against human rights to force medication. MR. TURNEY agreed and added that the involuntary use of psychotropic drugs would not be appropriate even in extreme cases. 3:12:22 PM REPRESENTATIVE CISSNA reiterated her concern that there are other alternatives that will not be made available because it is not the method that the professionals in that setting are approving. She suggested expanding the rights of the individual by changing paragraph (3) to read: And a chosen less intrusive alternative treatment has been utilized and proven ineffective. MS. KRALY advised that the language for the legislation was taken from the Alaska Supreme Court decision and placed in the bill. She stressed that the question of alternative medications is brought before the judge at the time of the petition, and that all of the alternatives available are discussed in order to meet the clear and convincing burden of the petition. 3:15:23 PM CHAIR WILSON observed that HB 173 will be reviewed by the House Judiciary Standing Committee. 3:16:03 PM REPRESENTATIVE CISSNA noted that having the implied or inferred standard may be insufficient. She pointed out that science is changing every day. In addition, a judge may not recognize the legislature's intention when acting on legislation. She stated her concern for the rights of patients who may see the world in a different perspective. 3:17:29 PM JIM GOTTSTEIN, attorney-at-law, Law Project for Psychiatric Rights, informed the committee that he was the attorney who won the Myers v API lawsuit. Mr. Gottstein suggested an addition to the bill in order to comply with the court ruling in Myers v API. He read: When making the best interest determination under (g) of this section, the court shall, at a minimum, consider the same factors as set forth in AS 47.30.837(d)(2) MR. GOTTSTEIN explained that the Alaska Supreme Court specifically indicated that those factors should be considered. In answer to a question, he noted that the factors he referred to have been read into the record and suggested that they be a part of the statute, and not only a part of the court decision. In addition, he informed the committee that the court petition hearings are often "a sham". Mr. Gottstein reiterated that the court ruled that those factors should be considered at a minimum. He continued to explain that, in Anchorage, testimony by physicians is not challenged by the public defenders and the elements of discovery are not discussed. He opined that patient's rights are not honored, but dishonored, as a matter of course. CHAIR WILSON asked whether strengthening the language about what information is provided to the judge will make a difference. MR. GOTTSTEIN answered that to solve the problem, patients need to be given real legal representation. Otherwise, their rights will be ignored. However, he opined that the problem of legal representation was beyond the scope of this committee. Mr. Gottstein then turned to the issue of "shall" versus "may". [Due to technical difficulties Mr. Gottstein's testimony was interrupted, and the meeting was subsequently adjourned.] [HB 173 was held over.]
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