ILLEGAL FORCED PSYCHIATRIC DRUGGING IS TORTURE:
Copyright by DMHGUR
February 23, 2011
1. California Penal Code 206 defines torture. Page 2
2. Elements of the crime of torture as defined by P.C. 206 Page 2
3. The argument for charging California Department of Mental
Health officials with torture under P.C. 206
Element #1: Intent Pages 3-9
Element #2: Infliction of Significant or Substantial
Physical Injury Pages 9-10
4. Summary Page 10
5. Notes & Attachments Pages 11-20
1. CALIFORNIA LEGAL DEFINITION OF TORTURE
California Penal Code 206 defines torture (complete statute follows):
206. Every person who, with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury as defined in Section 12022.7 upon the person of another, is guilty of torture.
The crime of torture does not require any proof that the victim suffered pain.
206.1. Torture is punishable by imprisonment in the state prison for a term of life.
Section 12022.7 defines “great bodily injury”:
(f) As used in this section, “great bodily injury” means a significant or substantial physical injury.
2. ELEMENTS OF THE CRIME OF TORTURE UNDER CALIFORNIA LAW
- Intent to cause cruel or extreme pain and suffering for any of the following purposes:
d) any sadistic purpose;
- 2. Infliction of significant or substantial physical injury, without proof that the victim suffered pain.
Insofar as obtaining a conviction for the crime of torture, both of the above elements must be proved.
3. THE CASE FOR CHARGING CALIFORNIA DEPARTMENT OF MENTAL HEALTH OFFICIALS (HEREINAFTER REFERRED TO AS “DMH OFFICIALS”) WITH TORTURE UNDER CALIFORNIA LAW
ELEMENT # 1: INTENT
Differentiation between cruel pain and extreme pain must be made, as either can be an element of the crime of torture as defined by the statute.
Cruel Pain: Webster’s Unabridged Dictionary of the English Language (2nd Edition) 2001, defines cruel thusly: willfully or knowingly causing pain and distress to others. A secondary meaning is: enjoying the pain or distress of others.
Extreme Pain: According to Webster, extreme connotes exceedingly great in degree, so that any pain which was great pain would qualify under the statute.
However, the statute requires no proof that the pain was, in fact, suffered, whether cruel or extreme.
ARGUMENTS FOR PROSECUTION OF DMH OFFICIALS AGAINST PROBABLE DEFENSES REGARDING INTENT
DEFENSE #1: LAWFUL SANCTIONS
The first defense DMH officials have against intent is that whatever pain and suffering they may have caused by forcibly drugging inmates under their control was due to lawful sanctions (1). EXHIBIT A disproves that defense.
EXHIBIT A: Finding by Disability Rights California dated August 31, 2009.
The evidence that DMH officials are not acting lawfully is contained in a memo (2) dated August 31, 2009, from Agnes Lintz, J.D., Patients Rights Specialist at the California Office of Patients’ Rights (Disability Rights California [DRC]).
This memo was written in response to an appeal filed with DRC by an inmate named Lee Clarke who was incarcerated at Atascadero State Hospital (ASH), a DMH facility. Among other things, Mr. Clarke was objecting to being forcibly drugged at the facility. In the memo, Ms. Lintz notes:
“As the Qawi case (3) makes clear, California has chosen to require a
court hearing and therefore, a state hospital is violating an individual’s
rights by administering medication in a non-emergency situation absent
a valid court order. Furthermore, the Department of Mental Health’s own Special Order clearly states that the hospital must file a petition for involuntary medication with the courts.”
Ms. Lintz then goes on to record:
“It is the understanding of the California Office of Patients’ Rights
that ASH has had difficulty in obtaining court orders to medicate
and that ASH feels that they may involuntarily medicate an individual
unless a court orders that an individual not be medicated.” (emphasis added)
She then sums up:
“The law is clear that the presumption is that an individual may make
their own medical decisions, and that involuntary medication may not occur absent an emergency or court order.”(emphasis added)
Finally, she states:
“In keeping with the above, our office will bring this matter to the
attention of our Department of Mental Health Contract Manager
and suggest that your right to be free from involuntary medication
absent an emergency or valid court order be restored.”
Exhibit A proves:
- DMH has a procedure for obtaining a court order to forcibly drug inmates in non-emergency situations (4);
- DMH officials are purposely not following this procedure, and are therefore not obtaining the required court order before drugging inmates;
- DMH officials are acting in conscious defiance of the law (the Qawi decision);
- This practice is ongoing, widespread, and is therefore well known to DMH officials.
To sum up, Exhibit A proves conscious, organized, planned intent to break the law on the part of DMH officials who are sworn to uphold the law. Furthermore, this intent has been put into action through the development of an underground regulation used to carry out this illegal activity over a long period of time, in spite of having been warned and advised by their own contractor that their actions were contrary to law.
Furthermore, the Qawi ruling itself noted the effects of the drugs being forced on the prisoners as causing,
“A potentially permanent side effect…tardive dyskinesia, a neurological disorder manifested by involuntary, rhythmic, and grotesque movements of the face, mouth, tongue, jaw, and extremities, for which there is no cure. On rare occasions, use of these drugs has caused sudden death.” (California Supreme Court, In re Kanuri Surgury Qawi, page 10).
The court went on to note,
“The basic constitutional and common law right to privacy and bodily integrity is therefore especially implicated by the forced administration of medications with such potential adverse consequences” (page 10).
It is important to remember that the Qawi case is not remote to the Department of Mental Health. Kanuri Surgury Qawi was an inmate in a DMH state hospital when DMH itself brought the issue of forced drugging before the Supreme Court in 2001 after losing a ruling to Mr. Qawi in Superior Court and an appeal in the Court of Appeals. DMH (through the plaintiff in the case, Napa State Hospital Director Dr. Jeffrey Zwerin) argued at that time that Mr. Qawi, as a Mentally Disordered Offender, had no right to refuse antipsychotic medication prescribed for his mental disorder (page 2).
However, the court subsequently ruled,
“…an MDO can be compelled to take antipsychotic medication in a non-emergency situation only if a court, at the time the MDO is committed or recommitted, or in a separate proceeding, makes one of two findings: (1) that the MDO is incompetent or incapable of making decisions about his medical treatment; or (2) that the MDO is dangerous within the meaning of Welfare and Institutions Code section 5300….(S)omeone committed or recommitted as an MDO may not necessarily fit in either of these categories; such MDO’s would have the right to refuse medication in non-emergency circumstances” (page 2).
Therefore, it is clear that by consciously violating the law and, in the process, exposing prisoners in their custody to tardive dyskinesia and sudden death (among many other afflictions), DMH officials meet the standard of causing both cruel and extreme pain and suffering: cruel because they knowingly caused it, and extreme because the disfiguring effects are potentially permanent (i.e., they have been known to be permanent in at least some cases), thus altering the social interactions of the prisoner for the remainder of his life, and of course, causing death is the most extreme of permanent effects possible.
From these facts, is it possible to infer or determine that the motivation of the DMH officials could be Revenge, Extortion, Persuasion, or Some Other Sadistic Purpose? If any of these motives can be reasonably deduced, DMH officials’ actions would satisfy the first element of the crime of torture under California law. We now examine each of these motives.
Revenge is defined as, “exacting punishment for a wrong on behalf of (another)” [Webster’s Unabridged Dictionary of the English Language, 2001, Random House Press]. Since all inmates at state mental hospitals come to be there as a result of judicial proceedings involving accusations and/or convictions of criminal actions, the element of revenge on the part of DMH officials cannot be summarily dismissed. The legislators who created the statutes forcing the inmates to be incarcerated at the state hospitals were careful to state that the purpose of the laws is medical treatment, not punishment (5). However, the fact that such denial of intent is necessary to explain the law merely proves that such intent must be guarded against, as it is likely to occur. Since the DMH officials have been clear that they are currently (and will continue) disobeying the law against forced drugging, the motivation of revenge must not be easily discounted. Revenge is a powerful motivator, often overcoming more rational analysis of the situation. It is often plotted, and carried out with great detail to planning and organization. We cannot assume that DMH officials are immune from this powerful motivating impulse.
Another aspect indicating the intent of revenge on the part of DMH officials has to do with the families of inmates and their interaction with DMH officials and staff. Those family members who question the treatment given to their loved ones are immediately exiled from the treatment teams and denied any meaningful interaction with the authorities concerning “treatment” decisions. These actions are in direct conflict with therapeutic guidelines for successfully treating persons with mental disorders, which state that the single most powerful indicator of recovery for a person with mental disorder is the support of family members (6). Staff can punish the inmate if the inmate’s parents or families write letters to DMH or other state authorities, etc. Some inmates have been held for decades, allege some families, because their families have loudly protested the treatment their loved one was subjected to at the facility. These protests are almost always around the issue of forced drugging (7). Forcible drugging of these individuals is one clear way of punishing them for speaking out, and limiting their effectiveness when they continue to attempt to do so. Therefore, revenge exacted against these prisoners and their families for daring to question the actions of the DMH officials is a plausible motivating intent.
Webster defines extort as: “to wrest or wring (money, information, etc.) from a person by violence, intimidation, or abuse of authority” (emphasis added). The abuse of authority aspect is key here. The question is, then, what would the authorities be trying to extort from the inmates? The answers could be: job and economic security (in the form of benefits paid to DMH by the federal government for medical treatment of the inmate); validation of their role (as DMH authorities) in the existing social order; subservience; compliant behavior – to name a few examples. Economic security (for the DMH official) is important, and inmates who are forcibly drugged can easily be portrayed in court as “not in remission” because they “have no insight” (see below) into their mental illness, and therefore must be kept in the state hospital for further treatment. We have already established (see above) that the DMH officials are breaking the law to forcibly drug the inmates, so the abuse of authority is already proved. Since the abuse of authority results in increased funding for the DMH, the element of extortion is proven fact.
One of the main tasks that DMH officials set for themselves is to “prove” to inmates that they suffer from a mental illness. This is, in fact, an impossible task, since DMH has no objective evidence (blood tests, X-Rays, etc.) to prove their allegations. One of the first questions they ask the inmates upon their arrival at the facility is, “Do you think you have a mental illness?” A negative response is put down as “lack of insight”. The first task of “treatment” then becomes to convince the inmate that, in fact, he is mentally ill. Neuroleptic drugs have the effect of cognitive blunting, among others. Simply put, cognitive blunting means impaired analytical thought processes. Persons on neuroleptic drugs can’t think as well as they could absent the drugs. Therefore, forced drugging makes these inmates easier to convince on any particular subject that requires analysis. Therefore, persuasion is a powerful incentive for DMH officials to forcibly drug inmates in order to get them to agree that they have a mental illness.
Other sadistic purposes
Sadism is defined as sexual gratification gained through causing pain or degradation to others. For an offer of proof of this intent, we turn to recent history at one of the DMH facilities. In February, 2010, Ed Foulk, Executive Director of Napa State Hospital, was arrested for child molestation. Allegations were made by several men, one of whom was Foulk’s adopted son, that Foulk had molested them over a period of many years. Mr. Foulk has since been convicted of these charges and sent to prison for 248 years (8). Mr. Foulk, through his position of power at the facility, had the means and the opportunity to gratify himself in regards to any of his dysfunctional proclivities. The fact that none of this was ever discovered or revealed by DMH officials during his years working for the agency is a telling commentary in regards to the potential for sadistic behavior on the part of upper level DMH executives. DMH, unlike law enforcement agencies, has no procedures in place to determine what the motivation of prospective employees may be for wanting to work at the agency. This lack of screening results, as Mr. Foulk’s case clearly shows, in the fact that persons who cannot be trusted with any kind of authority due to their criminal intentions find their way into the agency and, indeed, can rise to positions of great authority within the agency. Indeed, it must be asked: Why were all the inmates at Napa State Hospital while Mr. Foulk was in charge there not being subjected to sadistic torture, since he had ultimate authority for their treatment? This example is proof that the intention of sadistic purposes was, and therefore can reasonably be assumed to be, a motivating intent of at least some DMH officials.
DEFENSE #2: USUAL AND STANDARD MEDICAL PRACTICES
The second defense DMH officials have against intent is the argument that they are only practicing medicine according to standard medical procedures established within the medical community. We now examine the evidence addressing this defense drawn from the archives of the literature of the psychiatric profession itself, case law on the issue of mental disorders, and the popular press.
Current psychiatric practice addressing treatment for severe mental illness is based upon the theory that “mental illness” is a “brain disorder” caused, primarily, by “chemical imbalances” in the brain neurotransmitter system. However, it has long been established in the literature that the theory of biochemical imbalances in the brain as a cause of mental disorders has no scientific foundation (9). It is also a matter of record that the psychiatric and judicial establishments systematically continually and regularly ignore and dismiss this evidence (10). These facts must be viewed in the context wherein psychiatry has historically made many claims for the efficacious treatment of mental illness, only later to see those claims disproved (11). These treatments have included procedures proven to be harmful, even fatal, and certainly painful to the victims – treatments now considered to be examples of cruel and unusual punishment (12). Therefore, the current claims of the psychiatric industry must be viewed with great skepticism, at the very least, since these claims have changed over time, and the so-called “great breakthroughs” of one era are subsequently seen as misguided sources of great harm. Psychiatry today, wedded to the biochemical theory of brain disorders and facing a decades-long drought of any proof of its validation, increasingly relies on falsification of clinical studies (13), bribery of academics (14), and mass propaganda campaigns touting the latest drug breakthroughs (15) in order to justify its position. But behind this barrage of bluster, an ineluctable fact remains unchanged: There is no proof whatsoever that so-called “biochemical imbalances” in the brain cause mental problems (16).
Medicine has depended on the scientific method for its great progress over the past 150 years since Virchow established pathology as central to understanding the process of disease (17). At the heart of the scientific method lies the proposition that if an experiment designed to prove a hypothesis fails, then either the experiment wasn’t properly designed or executed, or else the hypothesis is in error. After more than a century of effort, psychiatry still searches for the elusive evidence that will prove the biochemical hypothesis of mental disorder. Meanwhile, with each experiment and study, the evidence mounts, and becomes overwhelming, that they are barking up the wrong hypothetical tree.
Psychiatrists working in state mental hospitals, through their professional organization, the American Psychiatric Association, are well aware of these contradictions as well as the conflicts of interest inherent in their connections to the pharmaceutical industry (18). The courts, in accepting forensic testimony from psychiatrists employed by the state, implicitly and explicitly recognize these witnesses as “experts” in the field of psychiatry. In bestowing that title on these witnesses, the court recognizes their familiarity with current trends of thought and clinical practices in the field. The criticisms and factual discrepancies of the biochemical model are well known to psychiatrists, and the controversy surrounding the brain-disabling drugs used to “treat” these disorders has been a hot topic of debate within the profession for at least fifty (50) years (19). Meanwhile, the legal profession has consistently ignored this controversy, preferring instead to uncritically accept the unproven claims of the biochemical theory at face value (20).
Forced drugging, given the painful burden it imposes on the recipient of the drugs, has a heavy responsibility that goes with it: Can forced drugging be justified, given that the theory of its “benefits” rests upon unverified science and unproven results? The effects of neuroleptic drugs have been compared to lobotomies, a brutal form of psycho-surgery once popular in psychiatry finally outlawed in the 1960’s (21). Modern psychiatry, viewed objectively, can accurately be described as repeating its cruel errors of the past. Meanwhile, the legal profession, in not defending the fundamental liberty and privacy rights of the targets of these practices (22), is abrogating its responsibility to its clients, and to the rights of all citizens.
DMH officials have a professional duty to be aware of the risks and benefits of current treatment practices. By advocating and enforcing long-term forced addiction to drugs which cause debilitating, painful, chronic disease processes and early death instead of more beneficial, less intrusive methods, DMH officials have abandoned their role of therapeutic professionals. Instead, they are acting as brutal security guards for a corrupt system dominated by the economic interests of what has been termed the Psychopharmaceutical Industrial Complex (PPIC), a symbiotic system made up of the American Psychiatric Association, the pharmaceutical industry, public relations and advertising firms, patient support organizations, the National Institute of Mental Health, managed care organizations, and the flow of resources and money among these groups (23).
DEFENSE #3: DMH OFFICIALS ARE DEFENDING THE PUBLIC INTEREST
This argument is taken from the legislation that created the laws in the first place (24). If we are to believe the statistics of the State of California, there is overwhelming evidence that DMH current policies have a negative effect upon public safety (25). Recidivism rates lead us to the inevitable conclusion that the primary effectiveness of DMH policies is due to the fact that the agency locks prisoners up for long periods of time and keeps them segregated from the public, and that the inmates return to the system repeatedly after short periods outside the mental hospitals. DMH has a record of failure to effectively treat the prisoners, and therefore failure to protect the public from the actions of the unsuccessfully treated prisoners. This should not be surprising, as the primary method of “treatment” is forced psychiatric drugging, a practice that violates the fundamental contract between physician and patient: The Hippocratic Oath, which states, “First of all, do no harm”. In addition, as has been shown, DMH officials are illegally engaged in forced drugging, showing they have wanton disregard for the law, and therefore wanton disregard for both the prisoners and the public at large. How can officials who are violating the law claim they are defending the public interest? Therefore, DMH officials’ arguments that they are defending the interests of the public at large should also be dismissed.
THEREFORE NONE OF THE DEFENSES THAT DMH OFFICIALS MIGHT CLAIM – LAWFUL SANCTIONS, STANDARD MEDICAL PRACTICE, OR DEFENDING THE PUBLIC INTEREST – CAN BE JUSTIFIED UPON EXAMINATION OF THE FACTS. THEREFORE, THE ELEMENT OF INTENT IS CREDIBLY ALLEGED AS FACT.
ELEMENT #2: INFLICTION OF SIGNIFICANT OR SUBSTANTIAL PHYSICAL INJURY
This element can be proven by EXHIBIT B: Medical records of prisoners held at the various DMH facilities, and by EXHIBIT C: Death Certificates of patients who died while in treatment at DMH facilities.
Evidence to prove that long-term ingestion of neuroleptic drugs by prisoners at DMH facilities is widespread and has harmful physical and mental effects can be obtained by subpoenaing the medical records of inmates currently (or within the past seven years) being forcibly drugged at any of the DMH facilities (26).
Chronic usage of neuroleptic drugs is associated with painful disorders and early death. Death Certificates tell the tale of forced drugging and the resultant chronic disorders and early deaths suffered by the inmates (27). The fact that county coroners routinely fail to look into these deaths is not evidence that the deaths are due to natural causes. The coroners themselves are in violation of the law to investigate all deaths of inmates in state mental hospitals (28). The cover up of these abuses is troubling, and evidences endemic problems expanding far beyond the confines of the Department of Mental Health, infecting the very fabric of law enforcement itself. The attached Death Certificates of inmates who have died at ASH during the period 2006-2010 reveal that the manner of death, etiology of the disease process that led to death, and the investigations that should have accompanied these deaths have all been fraudulently addressed.
THEREFORE, THE ELEMENT OF INFLICTION OF SIGNIFICANT OR SUBSTANTIAL PHYSICAL INJURY CAUSED BY THE ACTIONS OF DMH OFFICIALS IS CREDIBLY ALLEGED AS FACT.
4. SUMMARY & CHARGE
Therefore, the elements of the crime of TORTURE as defined by California Penal Code Section 206 having been addressed and credibly alleged:
It is hereby demanded that the following officials of the California Department of Mental Health who served in the positions stated below between 2004 and the present date should be arrested and charged with torture under California law:
- 1. The Executive Director of the Department of Mental Health;
- 2. The Director of Long Term Care of the Department of Mental Health;
- 3. Each of the Executive Directors of the state mental hospitals;
- 4. Each of the Medical Directors of the state mental hospitals;
- 5. Each of the staff psychiatrists who have participated in the forced drugging of inmates at each of the state hospitals without having obtained and verified the necessary court order legalizing the procedure;
- 6. All other state hospital employees who have participated in, or facilitated in any manner, the forced drugging of any inmate in their care where a valid court order authorizing the drugging was not obtained.
5. NOTES* & ATTACHMENTS
(1) See the Mentally Disordered Offender Law, CA P.C. 2960-2980, the Not Guilty by Reason of Insanity Statute, P.C. 1026, and the Lanterman Petris Short Act, CA Welfare & Institutions Code 5300 et. seq.
(2) See EXHIBIT A, memo dated 8/31/09.
(3) In Re Qawi 32 Cal.4th 1, 24(2004).
(4) DMH Special Order 339. Note: Special Order 339 was found to be an underground regulation by the Office of Administrative Law within the meaning of California Code of Regulations, title 1, section 250. (See Office of Administrative Law Determination No. 32, File # CTU 2008-0606-02)
(5) See Note (1), above.
(6) See, e.g., When Someone You Love Has a Mental Illness, Rebecca Woolis, 2003.
(7) See, e.g., Refusing the Right to Refuse: Coerced Treatment of Mentally Disordered Persons, Grant H. Morris, 2006.
(8) Associated Press, 2/23/11.
(9) See, e.g., “Blaming the Brain”, by Elliot S. Valenstein. The Free Press, 1998.
(10)See, e.g., “Inside the Battle to Define Mental Illness”, by Gary Greenberg, licensed psychotherapist, Wired magazine, January, 2011.
(11)See, e.g., “Mad in America: Bad Science, Bad Medicine and the Enduring Mistreatment of the Mentally Ill”, by Robert Whitaker, 2002.
(12)See, e.g., “A Psychiatric Revolution”, by Andrew Scull, The Lancet, Vol. 375, Issue 9722, pages 1246-1247, April, 2010.
(13)See, e.g., “Psychiatric Researcher Pleads Guilty to Research Fraud”, by David Guitierrez, Natural News, 11/29/10.
(14)See, e.g., “Med Schools Flunk at keeping Faculty Off Pharma Speaking Circuit”, by Tracy Weber & Charles Ornstein, ProPublica, 12/19/10.
(15)See, e.g., “Ex-Glaxo Executive is Charged in Drug Fraud”, by Duff Wilson, New York Times, 11/9/10.
(16)See “Unhinged: The Trouble With Psychiatry”, by Dr. Daniel Carlat, 2010. See also “Tracking the American Epidemic of Mental Illness” (series), by Evelyn Pringle, OPED News, May/June, 2010. See also 2003 statement issued by the American Psychiatric Association: “…brain science has not advanced to the point where scientists or clinicians can point to readily discernable pathologic lesions or genetic abnormalities that in and of themselves serve as reliable or predictive bio-markers of a given mental disorder or mental disorders as a group.” (Cited in Pringle article, above).
(17)“Cellular Pathology as Based Upon Physiological and Pathological Histology”, by Rudolph Virchow, 1858.
(18)See, e.g., “On the Take – How Medicine’s Complicity with Big Business Can Endanger Your Health”, by Jerome P. Kassirer, M.D., 2005.
(19)See, e.g., “Is the Cure Worse Than the Cure”? by Jonathan Cole (acknowledged father of clinical psychopharmacology), 1978.
(20)See, generally, “Mental Disability Law: Civil and Criminal”, by Michael L. Perlin & Heather Ellis Cucolo, 2007.
(21)“The United Nations Convention on the Rights of Persons with Disabilities and the Right to be Free From Nonconsensual Psychiatric Interventions”, by Tina Minkowitz, 34 SYRACUSE J. INT’L L. & COM. 405.
(22)“Pursuing Justice for the Mentally Disabled”, by Grant H. Morris, 42 San Diego Law Review 757, 758, (2005).
(23)Paper in Journal of Mental Health Counseling, by Dr. Thomas Murray, director, Counseling and Disability Services, University of North Caroline School of Art, 10/1/2009.
(24)See Note (1), above.
(25)2010 Adult Institutions Outcome Evaluation Report, California Department of Corrections and Rehabilitation.
(26)EXHIBIT B: Medical Records of Inmates held at DMH facilities forced to ingest neuroleptic drugs, to be obtained by subpoena in this matter before the court.
(27)EXHIBIT C: See, e.g., redacted copy of Death Certificate Document Number 000242683, with attached comments.
(28)California Welfare & Institutions Code Section 4137.
*The information available in this field is voluminous. Many notes, characterized by e.g., are simply one or a few sources available on the subject.