James Gottstein on Psychiatry and Your Legal Rights

The following interview is part of a “future of mental health” interview series that will be running for 100+ days. This series presents different points of view about what helps a person in distress. I’ve aimed to be ecumenical and included many points of view different from my own. I hope you enjoy it. As with every service and resource in the mental health field, please do your due diligence. If you’d like to learn more about these philosophies, services, and organizations mentioned, follow the links provided.

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Interview with James Gottstein

EM: Can you tell us about your law project for psychiatric rights called PsychRights?

JG: I founded PsychRights in 2002 after reading Robert Whitaker's Mad in America. Previously I had a fairly good idea about the drugs being counterproductive and harmful, but didn't feel I was in much of a position to do anything about it that the great people already fighting forced drugging weren’t already doing. However, when I read Mad in American, in addition to being a great book, to me, it was a litigation roadmap to challenging forced drugging based on the drugs not being in people's best interest.

Thus, PsychRights' mission is to mount a strategic litigation campaign against forced psychiatric drugging and electroshock. In Alaska, PsychRights has won 5 Alaska Supreme Court cases (and lost a couple). The Alaska Supreme Court has held in PsychRights cases that the government cannot drug someone against their will unless it can prove by clear and convincing evidence that it is in the person's best interest and there is no less intrusive alternative available.

In a later case it held that "available" means "feasible" and that if there is a feasible less intrusive alternative the government has to either provide it or let the person go. These decisions are based on constitutional requirements and should be applicable in all states. The problem is that people's rights are being pervasively violated.

EM: In what way are people's rights being pervasively violated?

JG: It is clear to me, as a matter of the truth, that the government can never prove by clear and convincing evidence that forcing someone to take a psychiatric drug, usually a neuroleptic, is in their best interest (I don't call them "antipsychotics," because that word is marketing hype as they don't have antipsychotic properties for most).

There are also almost always feasible less intrusive alternatives. The problem is that the lawyers appointed to represent people facing these orders are not adequately representing their clients. They are not presenting the evidence. One reason is that they really are not allowed to because there is no money for expert witnesses, they have too many cases, etc. More troubling, they are often not allowed to "rock the boat." They also tend to believe "if my client wasn't crazy, she would know this is good for here," and therefore don't put up any real defense. Judges tend to have the same attitude. It all ends up being sham legal proceedings. Kangaroo courts.

The same is true for involuntary commitment where the Government has to prove by clear and convincing evidence that the person is such a danger to himself or others as a result of "mental illness" that they have to be locked up to keep themselves or others safe from serious harm. Psychiatrists are simply not able to legitimately prove this in the vast majority of cases. The government also has to prove by clear and convincing evidence that there is no less restrictive alternative. In my view no more than 10% of the people psychiatrically imprisoned under the euphemism "involuntary commitment," actually meet the legal criteria for being locked up.

I write about these pervasive rights violations in a law review article, Involuntary Commitment and Forced Psychiatric Drugging in the Trial Courts: Rights Violations as a Matter of Course.

EM: You take a special interest in the plight of children affected by the current mental health system. What are your thoughts on that and what actions do you take?

JG: As terrible as the psychiatric drugging and electroshocking of adults is, the drugging of children is even more horrific. I have a hard time coming up with an adjective strong enough for the carnage caused by the widespread psychiatric drugging of children, especially poor children on Medicaid. This is an unfolding national tragedy of immense proportions, the results of which we don't even know yet.

Poor children are so vulnerable because their parents don't have the social standing to resist schools and child protective services insisting their children be drugged to suppress behavior that disturbs the adults. Despite laws to the contrary, parents are told their children will be thrown out of school if they are not given the drugs and often threatened with having their children taken from them on the grounds that the parents are neglecting the child's medical need to be drugged. Both of these threats are often carried out. God help foster children because they are particularly at the mercy of bureaucrats who have been brainwashed by Big Pharma to drug children.

Foster children have been taken into custody because there has been a finding that they have been subjected to abuse or neglect. If the child has really been abused or neglected it is quite normal for him or her to "act out." Whether they have been abused or neglected or not, being yanked from their home is usually traumatic and acting out is a normal response. Then, foster placements are often pretty awful which also naturally leads to acting out. Instead of helping these children and youth to be successful in spite of these difficult events, or their parents to be more successful parents, we tell the children that they have defective brains; that they have no chance for a normal, happy life, and will need to be on mind-numbing drugs for the rest of their lives. The message is also that they have no responsibility for their behavior. All of these things are exactly the wrong messages to give these children and youth. There is a tremendous on-line course, CriticalThinkRx, that goes through the scientific evidence on all this quite authoritatively.

In terms of addressing the problem, PsychRights has identified three strategic litigation approaches. The first, PsychRights' Medicaid Fraud Initiative Against Psychiatric Drugging of Children & Youth, is based on the fact that most psychiatric drugs given to children and youth are not properly reimbursed by Medicaid and thus psychiatrists commit Medicaid Fraud when they write such prescriptions and pharmacies when they bill Medicaid for them. Since each offending prescription carries a minimum penalty of $5,500 and any child psychiatrist is likely to have thousands of such prescriptions within the 6 year statute of limitations, the idea is that by bankrupting one or a few it will scare others into stopping.

The second approach, which PsychRights hasn't had the resources to pursue, is to sue states for violating the constitutional rights of foster children because their Fourteenth Amendment substantive due process right to be free from an unreasonable risk of harm caused by the government is being violated by the drugging.

The third is to challenge pediatric approvals of psychiatric drugs by the Food and Drug Administration (FDA).

EM: Can you tell us what the Zyprexa Papers were and why they were important?

JG: Tens of thousands of people sued Eli Lilly, the manufacturer of Zyprexa, for causing diabetes and other metabolic problems, most often massive weight gain, and all of the cases were consolidated for discovery and settlement purposes in one federal court case in Brooklyn, New York. That discovery was placed under seal (made secret) with various ways to unseal them. One was if any expert having access to the discovery received a subpoena to produce any of the documents, Eli Lilly had to be given notice and a reasonable opportunity to object.

An expert for the plaintiffs, Dr. David Egilman, found documents that were so disturbing he called me and suggested I subpoena them, which I did after finding a suitable case. Dr. Egilman notified Lilly and Dr. Egilman sent me the documents after he determined Lilly had been given a reasonable opportunity to object. I immediately turned around and got them out to the New York Times, which ran a series of front page stories, as well as a number of other people.

Eli Lilly came after Dr. Egilman and me with a legion of lawyers and the judge ultimately ordered everyone it could to return the documents and enjoined me from further dissemination. However, as the New York Times noted in Documents Borne by Winds of Free Speech, it seemed impossible to put the genie back in the bottle.

Also according to the New York Times, my release of the Zyprexa Papers caused the United States Department of Justice's investigation of a sealed Medicaid Fraud case against Lilly for getting doctors to prescribe Zyprexa off-label, including to children, to "gain momentum," Lilly Considers $1 Billion Fine to Settle Case, which resulted in a $1.4 Billion criminal and civil settlement.

I not only got none of it, I had several hundred thousand dollars of legal fees to pay, not all of which I have been able to do. I was threatened with civil and criminal contempt, but Lilly has not brought such charges, which I think is because they know that I now have evidence I hadn't been able to bring to the judge that would change the way things look.

In any event, in addition to exposing the great harm Lilly was hiding about Zyprexa and its illegal acts, I think the case exposed the problem of these kinds of documents being kept secret in settlements. As a result, similar documents about other drugs that otherwise would have been kept confidential in settlements have been released to the public. I like to think exposing the Zyprexa Papers has saved at least tens of thousands of lives, but the ubiquitous drugging of troublesome behavior is still pervasive.

EM: What are your thoughts on the current, dominant paradigm of diagnosing and treating mental disorders and the use of so-called psychiatric medication to treat mental disorders in children, teens and adults?

JG: In short, the diagnostic system, represented by the Diagnostic and Statistical Manual of Mental Disorders, the "DSM," is a fraud. As Mary Boyle, PhD has pointed out in Schizophrenia: A Scientific Delusion?, just as a classification it is invalid because the diagnostic criteria do not separate schizophrenia from not schizophrenia. The other diagnoses are also invalid. Even Thomas Insel, the former director of the National Institute of Mental Health, has admitted the DSM is invalid.

There was tremendous work being done last century up until the 1970s on the experiential bases of what gets described as mental illness and how to help people that was almost completely derailed by the psychiatry/pharmaceutical alliance to sell psychiatric drugs based on the still unproven, self-serving assumption that what gets diagnosed as mental illness is a brain disease. Psychiatric diagnoses in themselves cause tremendous harm, which Dr. Paula Caplan, has so determinedly been pointing out.

So the idea that psychiatric drugs actually treat "mental disorders" is similarly fraudulent. I do want to make it clear that I am not saying adults should not be allowed to take these drugs if they want. I do think they should be told the truth about them, including that there are other approaches that work for many without the harm, but even if they are not told the truth, if adults want to take them I don't say they shouldn't be allowed to. I know people who find them helpful and they should have that choice. Children are a different matter. It is barbaric to give these drugs to children and they are almost always forced in the sense that it is not their choice.

EM: If you had a loved one in emotional or mental distress, what would you suggest that he or she do or try?

JG: I think you got a particularly good answer to this question from Krista MacKinnon. One of the things I firmly believe is that there isn't any one approach that works for everyone. People have to find what works for them. I think Mary Ellen Copeland's Wellness Recovery Action Plan (WRAP) approach is very good for systematically identifying what works for people.

People need to have a place where they feel safe to go through what they are going through. They need to be able to try things and have them not work out so they can discover what does work. The former Clinical Director of Kingsboro Psychiatric Center in Brooklyn, psychiatrist Nathaniel Lehrman, who at one point was a psychiatric inpatient, found that playing the violin was instrumental in his recovery. It is a very individual thing. People may be interested in my Recovery Story and a video of me talking about these things.

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Jim Gottstein is a lawyer in private practice in Anchorage, Alaska who has advocated and litigated for people to have other approaches than psychiatric drugs available.

The Law Project for Psychiatric Rights is a public interest law firm devoted to the defense of people facing the horrors of forced psychiatric drugging and electroshock. We are further dedicated to exposing the truth about these drugs and the courts being misled into ordering people to be drugged and subjected to other brain and body damaging interventions against their will. Currently, due to massive growth in psychiatric drugging of children and youth and the current targeting of them for even more psychiatric drugging, PsychRights has made attacking this problem a priority. Children are virtually always forced to take these drugs because it is the adults in their lives who are making the decision. This is an unfolding national tragedy of immense proportions. Extensive information about all of this is available on our web site, http://psychrights.org/.

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Eric Maisel, Ph.D., is the author of 40+ books, among them The Future of Mental Health, Rethinking Depression, Mastering Creative Anxiety, Life Purpose Boot Camp and The Van Gogh Blues. Write Dr. Maisel at ericmaisel@hotmail.com, visit him at http://www.ericmaisel.com, and learn more about the future of mental health movement at http://www.thefutureofmentalhealth.com

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