Britney Spears has eloquently put an issue on the plate for all of us – listen Here – an issue that can affect all of us. Jim Gottstein has devoted a lifetime to grappling with this issue and recently wrote The Zyprexa Papers a book that features Bill Bigley, who was in a very similar position to Britney. Jim has written the post below.
Britney Spears’ very public conservatorship nightmare has brought public attention to a common form of human rights abuse and I hope this will contribute to the public discourse in important ways.
Foremost among these is the role that a morally and scientific bereft psychiatry plays. I recently had an online conversation on Britney Spears, conservatorship, and psychiatric power with the terrific Laura Delano and Dr. David Cohen late last month which might also be of interest.
First, though, I may need to apologize to Ms. Spears for invading her privacy by talking and writing about her situation. I say, “may” because Ms. Spears testified she wants the public to know how she feels and what is going on. Fundamentally, it is the public exposure of her plight that is her only real hope for freedom. The same can’t be said for the tens of thousands of people under abusive, even deadly, conservatorships, or guardianships as they are called in most states. Even so, it has to be uncomfortable for her at the least, and possibly mortifying, to have people discussing and opining on her personal life and mental health. Ms. Spears’ public mortification has the potential of helping those tens of thousands of people without her celebrity gain their freedom and I hope she will consider that some consolation. That is the point of this piece. Still, I will limit discussing the details of Ms. Spears’ personal life to the minimum.
To me it is clear the things Britney did 13 years ago leading to the conservatorship imposed on her were understandable reactions to what was going on in her life, especially the pervasive paparazzi presence. Attacking a car with an umbrella was actually a pretty restrained response to the paparazzi provocations. She was concerned about exposing herself and her baby to the paparazzi surrounding her car while strapping her baby into his car seat in the back so she put him on her lap to get them to safety. For this her baby was taken away from her? She was ahead of her time in shaving her head.
In The New York Times’ documentary Framing Britney Spears Michael Moore was on Larry King Live at the time this was all going on and asks, “Why don’t we just leave her alone? Why don’t we just let her go on with her life.” (44:10). This was exactly right. Who among us would have done any better under the circumstances?
So, how did Britney’s understandable reactions lead to her virtually complete loss of autonomy? Being put in the legal status of a small child?
Well, her father, Jamie, of course, but it was psychiatry that enabled him to strip Ms. Spears of her autonomy. Psychiatry, and the court, of course. And the lawyer who was appointed to pretend to represent her. In the Framing Britney Spears documentary, the lawyer Britney wanted to hire talks about meeting with her to make sure she was competent to hire him and determined that she was. However, the court denied Britney the right to choose him, citing a secret psychiatric report that it wouldn’t even let Britney’s chosen lawyer see.
What has been inflicted on Ms. Spears through a supposedly benevolent legal process are emblematic of many problems in the conservatorship/guardianship process, including psychiatry’s enabling of it.
The Role of Psychiatry
Conservatorships/Guardianships are used to take people’s rights away on the grounds that the person is not competent to make decisions. This is also called not having the “capacity” to make decisions. Psychiatrists are invariably called in to testify the person is not competent or lacks capacity. However, lay people are just as good–actually better–at making such determinations. There is a terrific book, published in 1984, now available as a free download, by psychiatrist Lee Coleman, titled The Reign of Error, in which he shows not only how psychiatric expert opinions do not meet the standard requirements for being admissible in court, they are often absurd.
Psychiatrists haven’t gotten any better since then. That they are still allowed to testify as experts can only be understood because society wants cover to take away people’s rights in certain situations. It is not just guardianships/conservatorships. Inaccurate and invalid psychiatric testimony is used to take children away from parents, usually mothers; psychiatrically imprison people, euphemistically called “involuntary commitment;” and force unwanted, unhelpful, counterproductive and harmful drugs into people. Even electroshock people against their will. This is all fueled by invalid so-called “expert” psychiatric testimony.
Conservatorships/Guardianships Are Based on a False Premise
The whole concept of taking away people’s rights to make decisions is fundamentally flawed. Rather than taking away someone’s right to make decisions for themselves they should be given support to make their own decisions. In fact, this is required in Article 12 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD).
Equal recognition before the law
- States Parties [countries] reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.
- States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.
- States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.
- States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests.
- Subject to the provisions of this article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.
(emphasis added). All of the underlined portions have been denied to Ms. Spears.
President Obama signed the CRPD in 2009, but it has not been ratified by the United States Senate. Even if it were to be ratified, the U.S. normally adopts declarations and reservations to the effect that no changes in U.S. law are necessary because the U.S. is already in full compliance. And even if ratified, U.S. citizens would have no right to enforce it in the courts. It is possible to take a case to the United Nations, but even if one were to win there it wouldn’t be enforceable in the United States. Still, it would establish an important point.
Taking Away Autonomy is Not in People’s Best Interests
The premise of guardianships/conservatorships is the person is incapable of making good decisions and therefore someone must step in to make decisions that are in their “best interest.” There are so many things wrong with this concept a whole book could be written about it—and probably has. I am not at all a fan of President Reagan, but there is a lot of truth when he said, “The nine most terrifying words in the English language are: ‘I’m from the Government, and I’m here to help,’ ” at least when psychiatry is involved.
People make decisions that are not in their best interests all the time, and it is only when psychiatrists are pulled into the picture are their rights to make decisions taken away. It appears a primary motivator for Jamie Spears to take over his daughter’s life was the concern that she was going to squander her money under the undue influence of her manager at the time, Sam Lutfi. Under § 1801(b) of the California Probate Code, a Conservatorship of the Estate, meaning the person’s property, including money, can be imposed if the person is “substantially unable to manage his or her own financial resources or resist fraud or undue influence.” “Substantially” is a pretty slim and ambiguous basis to take away a person’s right to control their property.
Managers rip off celebrities all the time, or they otherwise squander their money, and the right to make decisions is not taken from them. What is the difference? Psychiatry is called in to say they have something wrong with their brain and are not competent to make their own decisions.
Completely ignored is people learn from their mistakes. Taking away people’s right to make mistakes takes away their right to learn from their mistakes. But, one might say, “what if someone is mentally ill?” Leaving aside that there is no convincing evidence what gets diagnosed as mental illness has anything to do with brain pathology, it is still exactly the wrong thing to say to the person, “there is something incurably wrong with your brain and you are not responsible for your actions.” If people have deficits they should be given support to make their own decisions. This is what the CRPD requires. If someone is truly incapacitated, such as being unconscious after an accident, there are other mechanisms.
Under § 1801(a) of the California Probate Code a conservatorship of the person, which is called guardianship in most states, can be imposed if the person is, “unable to provide properly for his or her personal needs for physical health, food, clothing, or shelter.” What the hell does “properly” mean? I looked at the cases I could find, almost all of which are “unpublished” and therefore not “precedent,” and it seems to mean whatever the judge thinks it means.
The degree to which guardians can harm their wards is illustrated in my book, The Zyprexa Papers. After I had proven the psychiatric drugs they wanted to force into my client, Bill Bigley, were going to shorten his life, his guardian testified they should do it anyway because, “We have to look at the quality of his life . . . quality of life may even be more important than the quantity.” That Bill preferred not taking the drugs, in other words that his quality of life was better when he was not forced to take the drugs, was irrelevant. Whose quality of life is it anyway? The judge ordered Bill to be drugged against his will, writing, “Even if the medication shortens Bigley’s lifespan, the Court would authorize the administration of the medication because Bigley is not well now and he is getting worse.” My reaction, as I wrote in The Zyprexa Papers, was, “I guess judges decide who shall live and who shall die all the time, although the death penalty is not even allowed against murderers in Alaska.”
Denial of the Right to Chosen Legal Counsel
In the United States, normally, if one’s constitutional right has been violated the decision will be overturned only if it can be shown the violation “prejudiced” the person, meaning it caused the person to lose, or at least there was a good chance it did. However, the right to choose one’s own lawyer is so fundamental in U.S. law that in the criminal context, denial of that right will automatically overturn a conviction. U.S. v. Gonzalez-Lopez, 548 US 140 (2006). In other words, people have the absolute right to choose their own lawyer (if they are paying). Except . . . except if the person is found to be incompetent to choose their lawyer.
Where the guardianship system is most broken is the lawyers appointed to represent people do not advocate for their clients’ goals. Most states pretend, but California does not even. In the official California Court System’s Information for the Conservatee, it states:
The lawyer appointed by the court usually prepares and files a written report, including his or her recommendations for resolution of the matter before the court. . . . Recommendations by your court-appointed counsel are usually given great weight and consideration by the court.
It is a violation of a lawyer’s ethics to make such a recommendation. It is the lawyer’s job to try to achieve their client’s goals. Failure to do that makes the conservatorship proceeding a legal sham–a Kangaroo Court. For better or worse, the United States has an adversary legal system, where each side presents the evidence and arguments on behalf of their clients’ goals. It is the supposedly neutral judge who is charged with arriving at a just result after hearing all of the evidence and arguments presented by the lawyers for each party. I have no doubt things would have gone far better for Ms. Spears if she had had an attorney on her side, vigorously advocating for her all along.
In my book, The Zyprexa Papers, I describe how Bill Bigley’s guardian, who wanted him drugged against his will, did not want me to be his lawyer because I won maybe half the time, while his court appointed lawyers rarely won, got the court to prohibit me from representing Bill because he was supposedly incompetent to choose me. What is incompetent about choosing a lawyer who wins half the time while his appointed lawyers almost always lose? We took it to the Alaska Supreme Court which ruled if the trial court found Bill incompetent he couldn’t choose me to be his lawyer. The trial court did and that was the end of Bill.
Secrecy Acts as a Shield Against Exposure of Wrongdoing
Finally, a few words about the secrecy surrounding guardianship proceedings. The idea is to avoid embarrassing the person accused of being incompetent, but what it really does is prevent the public from knowing what is going on. Court proceedings being open to the public is a core value of the United States’ legal system, but it has greatly eroded with an astounding number and type of cases being held in secret. There is always some rationale for why it should be secret, but it results in no accountability. Ms. Spears has recently been allowed to choose her own lawyer and there is no doubt in my mind it would not have happened without the public scrutiny and uproar over her being denied that right.
About half of The Zyprexa Papers concerns Eli Lilly using the court to keep documents secret proving it knew from the beginning that Zyprexa caused diabetes and other metabolic problems, including massive weight gain in a large percentage of the people taking it. This secrecy killed tens of thousands of people.
In the guardianship situation, the fact of a guardianship being granted has to be public because that is the only way people can know the guardian has taken over the decision-making authority of the person. It is the secret psychiatric reports, etc., that do people in. In my view, the person against whom a conservatorship or guardianship is sought or has been granted should have the right to make everything public. But, of course, the system will say the person is not competent to make the decision. Catch-22.
We have filed this post about Britney along with other Medical Kidnap posts. As many readers of RxISK know you don’t have to have your rights removed with a formal piece of paper to end up in the trap Britney has been in – the medical system can be staggeringly hostile and violent if you don’t behave as you are told.
Some reviews of The Zyprexa Papers feature below: