Unconstitutional Detentions by Medical Doctors

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Are your rights at risk?

Editor’s Note: This article is intended for information purposes only. Because state and municipal laws vary greatly, as do the circumstances of individual cases, readers are advised to contact an attorney for specific legal advice. © Scott C. Tips 2015

In true public-health emergency situations, state public-health authorities can quarantine and isolate individuals in order to prevent the spread of communicable and dangerous diseases and infections; these are public-health officials who issue the declarations, not doctors and nurses. There is substantial constitutional authority cited by state and federal governments in support of this power.1

Recent presidential executive orders have expanded and solidified this detention power. President Barack Obama signed an executive order on July 31, 2014, amending a previous executive order of Former President George W. Bush, that gives the federal government the power to, “detain and quarantine any individuals confirmed or suspected of having ‘severe acute respiratory syndromes’ that may be transmissible, except for influenza.”2 Many groups see such orders as being on the thin edge of the knife that will then lead to coercive vaccinations.

So, in a time when increasing power is being sought by such governments to mandate vaccinations (and not just quarantine and isolate persons), the informed public is becoming more and more resistant to any such measures, knowing as they do the dangers and lack of effectiveness lurking in some vaccines and other health measures being thrown at them. The informed public is also increasingly suspicious of the unholy marriage between the medical community and politicians that has resulted in our sinking levels of health, wealth and happiness. “Drug everyone,” the doctors and drug companies say, and the politicians agree; and yet every parameter, from obesity levels to heart attack and cancer rates, continues to worsen while healthcare costs rise. The media plays along with that game by distracting the public and even outright lying to it.

Texas Acts and Reacts

So, it was into this climate of mistrust that both legislative houses in Texas passed with little debate a Senate Bill (S.B. 359) in May 2015 that would have changed current state law by granting hospital officials the police power to detain for a short period patients whom they believed may have mental issues, and with immunity from any liability for doing so. The bill was heavily supported and lobbied for by the Texas Medical Association, the Texas Society of Psychiatric Physicians, the Hogg Foundation for Mental Health and the Meadows Institute, and was considered a “shoo-in.” Sent to Texas Governor Greg Abbott, he caught the bill’s supporters off guard when he vetoed it on June 1, explaining his position as follows:

“The Fourth, Fifth, and Fourteenth Amendments to the United States Constitution limit the state’s authority to deprive a person of liberty. Under our constitutional tradition, the power to arrest and forcibly hold a person against his or her will is generally reserved for officers of the law acting in the name of the people of Texas. By bestowing that grave authority on private parties who lack the training of peace officers and are not bound by the same oath to protect and serve the public, SB 359 raises serious constitutional concerns and would lay the groundwork for further erosion of constitutional liberties.
“Medical facilities have options at their disposal to protect mentally ill patients and the public. Many hospitals already keep a peace officer on site at all times. For smaller facilities, law enforcement are always just a phone call and a few minutes away. Medical staff should work closely with law enforcement to help protect mentally ill patients and the public. But just as law enforcement should not be asked to practice medicine, medical staff should not be asked to engage in law enforcement, especially when that means depriving a person of the liberty protected by the Constitution.”3

The mainstream press savaged Governor Abbott for his veto, but those who had opposed the bill and advocated for a veto were just as vocal in his defense. Those seeking to kill the bill were the Texas Libertarian Party (co-founded by this author in the early 1970s), Texans for Accountable Government, the Texas Home School Coalition, the League of United Latin American Citizens and the Citizens Commission on Human Rights. The last group, founded by the Church of Scientology, provided the media with a wedge issue to accuse the governor of having been unduly influenced by a suspect “fringe” group.4 Not discussed by the media, however, was the huge pressure that was exerted by Big Medicine and almost certainly Big Pharma to get the bill passed in the first place.

Hospital Tricks

Hospitals have already been known in other states for playing the clever little trick of using a “psychiatric” detention in order to force a patient to submit to a non-psychiatric medical procedure against that patient’s consent.5 Had the bill not been vetoed by the governor, Texas hospitals and doctors would have had this extra power to coerce patients into medical procedures that in certain cases they neither wanted nor would have benefited from. Whatever happened to the Hippocratic Oath? To Informed Consent? And why give even more God-like powers to doctors?

Of course the 800-pound gorilla in this discussion is that these detention powers are merely a means of forcing strong, dangerous anti-psychotic drugs on patients who do not want them and/or will then truly be at a risk of harm should they get them. No one in the mainstream press raises this issue, but it exists nonetheless; and in the drug-happy closed universe that characterizes hospitals, we would be foolish not to acknowledge this drug risk right alongside the attendant death tolls that hospitals have racked up with drugs both properly and improperly prescribed.

Protective Laws Already Exist

As pointed out by Dr. Mossman and others, including Governor Abbott, laws already exist in all states permitting them to detain patients where there exists a:

• “Risk of harm through self-neglect, ‘grave disability,’ or failure to meet basic needs.”
• “Risk that a person might physically injure or kill himself.”
• “Risk that a person might physically harm other persons.”

It just requires that a peace or judicial officer make the decision. In some jurisdictions, patients may be detained if there is:

• Risk of physical deterioration without commitment.
• Potential dangerousness to property.
• Risk of relapse or mental deterioration.

Some understandably fear that mentally ill patients will be released into the public, grab a gun and then start killing people. I would be more afraid that continued psychiatric treatment by the medical profession with anti-psychotic drugs would lead to more gun violence, and indeed, the statistics have shown that. Still, gun-seizure laws exist—even in Texas—that would protect the public. As Dr. Jeffrey Swanson states, “Connecticut, Indiana and Texas already have a dangerous person gun seizure law. With the gun violence restraining order idea, a judge would make that decision. There has to be evidence there. There is a constitutional right at stake.”6

However alluring it might seem, allowing doctors and nurses to detain patients whom they think represent a threat is no different than granting attorneys judicial powers that are more properly reserved for judges. According to many constitutional guardians, it should just not be allowed as it would be a first step down the slippery slope in a grant of dangerous powers to detain for other reasons, such as refusing to allow oneself to be vaccinated. Their opponents claim that only a very limited number of people would be detained. Still, regardless of the number detained, what is called into question is the authority to detain and to whom that right belongs.

What to Do If Wrongfully Detained

But what do you do if you, a family member or a friend is detained by a hospital because the responsible doctor thinks the patient is a threat? And, even worse, what do you do if they want to impose a medical treatment without your informed consent?

1. If you, the patient, have the mental capacity to make a medical decision, then your decision is binding even if it creates a clear risk of death. If you are certain of your choice, then stand upon your rights, do not be intimidated and insist upon it.
2. Demand legal counsel if you find yourself “out-gunned” by those pressuring you or your family member or friend.
3. Refuse any medical treatment, including drugs, that you truly think might endanger your health or life.
4. Remember, psychiatric holds not made in “good faith” will exclude the doctor and hospital from immunity under the law and subject them to legal liability. If you observe any such bad-faith action, use the threat of personal legal action as leverage to obtain your immediate release.

On the other hand, all states allow mentally ill persons to be committed if their recent behavior poses a danger. With proper constitutional safeguards, some very few persons might be better off confined. The only question then is: Can we trust our current medical and political system with such power? WFscott tips

A graduate of the University of California at Berkeley Law School, Scott C. Tips currently practices internationally, emphasizing Food-and-Drug law, business law and business litigation, trade practice, and international corporate formation and management. He has been involved in the nutrition field for more than three decades and may be reached at (415) 244-1813 or by e-mail at scott@rivieramail.com.

End Notes
1 See U.S. Department of Health and Human Services, HHS Pandemic Influenza Plan, S8-14, November 2005, http://www.flu.gov/planning-preparedness/federal/hhspandemicinfluenzaplan.pdf; See also K. Swendiman and N. Lee Jones, Congressional Research Service, The 2009 Influenza Pandemic: Selected Legal Issues, at 10 (Oct. 29, 2009); See also U.S. Const. Amend. X; Jacobson v. Massachusetts, 197 U.S. 11, 25 (1905) (“According to settled principles…the police power of a State must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.”).
2 See Executive Order — Revised List of Quarantinable Communicable Diseases, www.whitehouse.gov/the-press-office/2014/07/31/executive-order-revised-list-quarantinable-communicable-diseases.
3 See http://www.journals.senate.state.tx.us/sjrnl/84r/pdf/84RSJ06-01-F.PDF#page=22.
4 See Morgan Smith, “Scientology Group Urged Veto of Mental Health Bill,” The Texas Tribune, July 14, 2015, at http://www.texastribune.org/2015/07/14/scientology-group-urged-veto-mental-health-bill.
5 See, e.g., D. Mossman M.D., “Psychiatric ‘Holds” for Non-psychiatric Patients,” Current Psychiatry, Vol. 12, No. 3, March 2013, at http://www.currentpsychiatry.com/home/article/psychiatric-holds-for-nonpsychiatric-patients/cb5be6ed2719783e3d1302ff5cd003fa.html.
6 Lois Beckett, “What We Actually Know About the Connections Between Mental Illness, Mass Shootings, and Gun Violence,” Pacific Standard, June 10, 2014, http://www.psmag.com/health-and-behavior/actually-know-connections-mental-illness-mass-shootings-gun-violence-83103.

Published in WholeFoods Magazine December 2015