Legislature(2007 - 2008)CAPITOL 106


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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                                                                    
     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                                                                    
     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                                                                    
     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                                                               
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                                                                      
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                                                                         
REPRESENTATIVE CISSNA asked for a copy of Mr. Farrell's                                                                         
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                                                                  
     (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                                                                  
     There  is  no   less  intrusive  alternative  treatment                                                                    
     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                                                               
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                                                                    
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                                                               
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                                                               
3:11:40 PM                                                                                                                    
MR. FARRELL responded that it  goes against human rights to force                                                               
MR.  TURNEY  agreed  and  added   that  the  involuntary  use  of                                                               
psychotropic  drugs  would not  be  appropriate  even in  extreme                                                               
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                                                                    
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                                                               
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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