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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Myers v. Alaska Psychiatric Institute (06/30/2006) sp-6021
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| FAITH J. MYERS, | ) |
| ) Supreme Court No. S- 11021 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-03-00277 PR |
| ) | |
| ALASKA PSYCHIATRIC | ) O P I N I O N |
| INSTITUTE, | ) |
| ) No. 6021- June 30, 2006 | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Morgan Christen, Judge.
Appearances: James B. Gottstein, Law Project
for Psychiatric Rights, Inc., Anchorage, for
Appellant. Michael G. Hotchkin, Assistant
Attorney General, Anchorage, and Gregg D.
Renkes, Attorney General, Juneau, for
Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
BRYNER, Chief Justice.
I. INTRODUCTION
Faith Myers, after being involuntarily committed to the
Alaska Psychiatric Institute, appealed a superior court order
approving nonconsensual administration of psychotropic drugs by
the institute. She argues that the statutes relied on by the
court in approving the medication violate the Alaska
Constitutions guarantees of privacy and liberty. We agree. In
keeping with most state courts that have addressed the issue, we
hold that, in the absence of emergency, a court may not authorize
the state to administer psychotropic drugs to a non-consenting
mental patient unless the court determines that the medication is
in the best interests of the patient and that no less intrusive
alternative treatment is available.
II. FACTS AND PROCEEDINGS
Faith Myers has suffered with mental illness for over
twenty years. Her symptoms have included paranoia, dizziness,
and vivid hallucinations. She has been hospitalized on a number
of occasions and, at times, a regimen of psychotropic medication
has seemed to improve her condition.
In 2001 Myers weaned herself off of psychotropic
medication, believing that the drugs actually worsened her
condition. She has described herself from this time forward as
an advocate for the mentally ill.
In February 2003, as a result of concerns expressed by
Myerss daughter and neighbors, Myers was involuntarily committed
to the Alaska Psychiatric Institute (API). Once admitted, Myers
refused to discuss treatment options with institute doctors. API
then filed a petition with the superior court requesting
authorization to medicate Myers without her consent.
Myers responded by challenging the constitutionality of
the statutory scheme that authorizes facilities to administer
psychotropic drugs without first securing a patients consent.
She argued that Alaskas constitutional rights to liberty and
privacy guarantee her the right to be free from unwanted mind-
altering chemicals. She asserted that the state can abridge this
right only when necessary to advance a compelling state interest.
In her case, Myers believed that API had not come close to making
this requisite showing and had also failed to show that
involuntary medication was a [least] restrictive means of
advancing any state interest.
Myers also challenged the [statutory] limitation on a
courts authority to modify or restrict a treatment plan. The
statute authorizing court-ordered administration of psychotropic
medication provides that once a court determines that [a] patient
is not competent to provide informed consent, the court shall
approve the . . . proposed use of psychotropic[s].1 On its face,
this provision does not seem to allow the court to consider
whether the proposed treatment plan would actually be in the
patients best interest, leaving that decision completely to the
treating facilitys physicians.
During Myerss hearing on APIs petition, two institute
psychiatrists testified that, in their opinion, administering
psychotropic medication to Myers would be appropriate. Myers
countered with testimony from two expert psychiatrists who
forcefully present[ed] their differing views on the advisability
of administering [psychotropic] medications to patients suffering
from schizophrenia. The first testified that psychotropic
medication is not the only viable treatment for schizophrenia.
While acknowledging that psychotropic medications played an
accepted role in the standard of care for [the] treatment of
psychosis, he advised that, because such drugs have so many
problems, they should be used in as small a dose for as short a
period of time as possible. Myerss second expert offered more
specific testimony that one of the drugs that API proposed to
administer to Myers Zyprexa was, despite being widely
prescribed, a very dangerous drug of dubious efficacy. He based
this testimony on a methodological analysis of the studies that
led the food and drug administration to approve Zyprexa for
clinical use.
At the conclusion of the hearing, the superior court
found that Myers lacked . . . insight into her own condition and
did not appreciate that she suffers from a mental disorder.
Although it noted that Myers understood the debate about the
advisability of psychotropic medication and had articulated a
reasonable objection to the proposed medication, the court
nonetheless ruled that she lacked the capacity to make informed
decisions regarding her treatment. Construing Alaskas statutes
as not allowing it to make an independent determination of Myerss
best interests, the court did not consider Myerss expert evidence
on the point and authorized API to administer psychotropic
medications to Myers based on APIs own assessment of Myerss best
interests.
The court nevertheless noted that it found Myerss case
troubling so much so that it issued an additional order
addressing in detail the arguments presented in the parties pre-
hearing briefs. In the order, the court found it troubling that
Alaskas statutory scheme prevented it from considering the merits
of APIs treatment plan, or weighing the objections of Myerss
experts. Because it believed that the statute unambiguously
limited the superior courts role to deciding whether Ms. Myers
has sufficient capacity to give informed consent, the court felt
constrained to adhere to its literal meaning. Yet the court
nevertheless emphasized that it found this limitation to be
problematic:
Where a patient, such as Ms. Myers, has a
history of undergoing a medical treatment she
found to be harmful, where she is found to
lack capacity to make her own medical
decisions and a valid debate exists in the
medical/psychiatric community as to the
safety and effectiveness of the proposed
treatment plan, it is troubling that the
statutory scheme apparently does not provide
a mechanism for presenting scientific
evidence challenging the proposed treatment
plan.
Myers now appeals.
III. DISCUSSION
Echoing the superior courts concern, Myers contends
that Alaskas statutory scheme violates her constitutional rights
to liberty2 and privacy.3 The central question she raises is
whether the state may force an unwilling mental patient to be
treated with psychotropic drugs without first obtaining a
judicial determination that this treatment is in the patients
best interests and that no less intrusive course of treatment is
available.
Myers argues that the right to refuse forced medication
is fundamental and that API cannot abridge this right without
first showing that medication would advance a compelling state
interest and that no less intrusive alternative is available.
She further contends that our states constitutional liberty and
privacy guarantees require that courts authorizing the
administration of psychotropic medications must find, first, that
the requested course of medication is in the patients best
interests; and, second, that the patient would presently consent
to the treatment if capable of making an informed decision.
In response, API initially contends that this appeal
should be dismissed as moot because Myers was released from API
soon after the superior court issued its ruling, so she never
actually received the authorized course of treatment. As to the
merits of Myerss constitutional claim, API denies that Myerss
interest in refusing unwanted psychotropic medication is
fundamental. Because Myers has been judged unable to make
informed decisions about her mental health condition, API
analogizes her status to the status of minors, who, API claims,
generally receive a different level of constitutional protection.
Therefore, API argues, in order to justify medicating Myers
without her consent, the state needs only to show that this
treatment would advance something less than a compelling state
interest. API further contends that, as a committed mental
patient, Myers has a competing constitutional interest in
receiving treatment for her illness.4 It asserts that the states
duty to provide [Myers] with treatment amounts to a legitimate
state interest one that we should deem sufficient to overcome
Myerss objections.
A. Alaskas Current Statutory Provisions
To place these arguments in perspective, we must begin
by considering Alaskas statutory provisions governing treatment
of mental patients. Alaska law recognizes and addresses a
distinct class of drugs called psychotropic medications.5
Psychotropic drugs affect the mind, behavior, intellectual
functions, perception, moods, and emotions6 and are known to
cause a number of potentially devastating side effects.7
[M]ost common . . . are the temporary,
muscular side effects (extra-pyramidal
symptoms) which disappear when the drug is
terminated; dystonic reactions (muscle
spasms, especially in the eyes, neck, face,
and arms; irregular flexing, writhing or
grimacing movements; protrusion of the
tongue); [and] akathesia (inability to stay
still, restlessness, agitation) . . .
Additionally, there are numerous other
nonmuscular effects, including drowsiness,
weakness, weight gain, dizziness, fainting,
low blood pressure, dry mouth, blurred
vision, loss of sexual desire, frigidity,
apathy, depression, constipation, diarrhea,
and changes in the blood.[8]
Courts have observed that the likelihood [that psychotropic drugs
will cause] at least some temporary side effects appears to be
undisputed9 and many have noted that the drugs may most
infamously cause Parkinsonian syndrome and tardive dyskinesia.10
Parkinsonian syndrome consists of muscular rigidity, fine resting
tremors, a masklike face, salivation, motor retardation, a
shuffling gait, and pill-rolling hand movements.11 Tardive
dyskinesia involves slow, rhythmical, repetitive, involuntary
movements of the mouth, lips, and tongue;12 it is permanent, and
its symptoms cannot currently be treated.13
Side effects aside, the truly intrusive nature of
psychotropic drugs may be best understood by appreciating that
they are literally intended to alter the mind.14 Recognizing that
purpose, many states have equated the intrusiveness of
psychotropic medication with the intrusiveness of
electroconvulsive therapy and psychosurgery.15
A special statutory regime governs involuntary
administration of these highly intrusive medications.16 It allows
the state to administer psychotropic medication without obtaining
a patients consent in both crisis and non-crisis situations.17
This case involves only the latter, and we emphasize at the
outset that our opinion does not extend to the use of
psychotropic medication in crisis or emergency situations.
Under Alaska law, to administer psychotropic drugs in a
non-crisis situation without first obtaining the patients
consent, the state must follow a two-step judicial process. The
first step requires the state to petition for the persons
commitment to a treatment facility.18 Persons may be involuntary
committed in Alaska if the state can show by clear and convincing
evidence that they are either mentally ill and, as a result,
likely to cause harm to themselves or others, or are gravely
disabled.19 Persons are deemed gravely disabled when they are so
unable to care for themselves that it seems very likely that they
will come to serious harm without help.20 To commit a mentally
ill person for more than seventy-two hours there must be, in
addition, a signed statement by two mental health professionals
declaring that treatment staff have considered and dismissed less
restrictive alternatives, and that they believe that the proposed
course of treatment (including involuntary commitment) will
improve the persons condition.21
An order authorizing a persons involuntary commitment
does not authorize the state to treat the committed person with
psychotropic drugs. Nor does it amount to a finding that the
patient is incapable of giving or withholding informed consent to
submit to such treatment.22 To treat an unwilling and
involuntarily committed mental patient with psychotropic
medication, the state must initiate the second step of the
process by filing a second petition, asking the court to approve
the treatment it proposes to give. At this second stage, the
state must prove two propositions by clear and convincing
evidence: (1) that the committed patient is currently unable to
give or withhold informed consent regarding an appropriate course
of treatment;23 (2) that the patient never previously made a
statement while competent that reliably expressed a desire to
refuse future treatment with psychotropic medication.24
In order to make informed decisions possible, the law
requires treatment facilities to give their patients certain
information concerning their situation and need for treatment,
including advice about: their diagnosis; proposed medications,
including possible side effects and interactions with other
drugs; their medical history; alternative treatments; and a
statement describing their right to give or withhold consent.25
For non-emergencies, the standard for determining the
patients capacity to give informed consent is laid out in AS
47.30.837(c).26 This provision allows a patient to refuse
medication unless the state shows, by clear and convincing
evidence, that the patient cannot demonstrate the capacity to
understand the patients situation and assimilate relevant facts,
is unable to participate in treatment decisions, or is unable to
articulate any objections to the proposed medication.27 Under
this provision, a patients inability to appreciate the presence
of a mental disorder is a relevant consideration but is not
dispositive.28
When the state files its petition to authorize
psychotropic medication, the law requires a visitor to be
appointed to assist the court when it considers the petition.
The visitor has a duty to gather and provide information to the
court on two issues: first, the visitor must evaluate the
patients present condition by administering a capacity
assessment; second, the visitor must conduct a search for any
prior expressed wishes of the patient regarding medication.29 The
search for prior expressions regarding medications includes both
written and oral statements:
The visitor shall gather pertinent
information and present it to the court in
written or oral form at the hearing. The
information must include documentation of the
following:
(1) the patients responses to a
capacity assessment instrument administered
at the request of the visitor;
(2) any expressed wishes of the patient
regarding medication, including wishes that
may have been expressed in a power of
attorney, a living will, an advance health
care directive under AS 13.52, or oral
statements of the patient, including
conversations with relatives and friends that
are significant persons in the patients life
as those conversations are remembered by the
relatives and friends; oral statements of
the patient should be accompanied by a
description of the circumstances under which
the patient made the statements, when
possible.[30]
Before authorizing psychotropic treatment, the court
must hold a hearing and consider all relevant evidence presented
by the petitioner, the respondent, and the visitor.31 At the end
of the hearing, the court may not authorize nonconsensual
psychotropic medication if it finds that the patient is presently
competent; in such cases, the court must honor the unwilling
patients wishes:
If the court determines that the patient is
competent to provide informed consent, the
court shall order the facility to honor the
patients decision about the use of
psychotropic medication.[32]
But if the court finds that the patient is presently incapable of
giving or withholding informed consent, and further determines
that the patient was also incompetent at the time of any
previously expressed wishes not to be medicated, then the statute
directs that the court shall authorize treatment:
If the court determines that the patient is
not competent to provide informed consent
and, by clear and convincing evidence, was
not competent to provide informed consent at
the time of previously expressed wishes
documented under [the visitors report], the
court shall approve the facilitys proposed
use of psychotropic medication.[33]
In short, once the court finds that the patient is
presently incapable of consenting and has never before expressed
medication-related wishes while competent, these provisions leave
the court no discretion to consider a patients best interests:
the provisions require it to approve the treatment.
B. Mootness
Soon after the superior court authorized API to
administer treatment, Myers was released. Because no
psychotropic medications were ever administered to her without
her consent, API argues that Myerss claims are now moot.
We generally refrain from deciding issues where the
facts have rendered the legal issues moot. 34 But we do not
enforce this rule rigidly, and have recognized that an exception
applies when a potentially moot case raises a matter of grave
public concern that is recurrent but capable of evading review.35
Here, API acknowledges that medication orders are time
critical, and that it is doubtful that an appeal from a
medication order could ever be completed within the orders period
of effectiveness. Nonetheless, API maintains that because this
case is the first challenge to the relevant statutes in eleven
years, it is unlikely that this controversy will actually recur.
API urges us to consider the issues limited track record of
repetition and to find that the public interest exception does
not apply to this case.
We have found the public interest exception to apply in
analogous settings. We have held, for example, that the
preadjudication detention of children is a matter of public
concern that was likely to recur.36 We similarly applied the
exception to a prisoner who challenged an order imposing solitary
confinement, even though the solitary time had already been
served.37
The United States Supreme Court has applied the public
interest exception in a case involving facts similar to those of
Myerss case. In Washington v. Harper, the Court considered a
mentally ill prisoners claim challenging the states efforts to
medicate him with antipsychotic drugs, even though the state had
abandoned its efforts.38 The Court declined to find the issue
moot, noting that the prisoner was still jailed, he still
suffered from schizophrenia, and the controversy could recur.39
Given the importance of the issues Myers raises, their
likelihood of recurring, and their ability to evade timely
appellate review, we similarly hold that the public interest
exception applies to this case.
C. Myerss Constitutional Challenge
Myers argues that, as interpreted in the superior
courts order, the provisions governing authorization of treatment
with psychotropic medications violate the Alaska Constitutions
guarantees of liberty and privacy. We agree.
The Alaska Constitutions opening provision, article I,
section 1, declares, This constitution is dedicated to the
principles that all persons have a natural right to life,
liberty, the pursuit of happiness, and the enjoyment of the
rewards of their own industry.40 Article I then sets out more
specific provisions guaranteeing individual liberty and privacy
in sections 7 and 22. Section 7 addresses liberty: No person
shall be deprived of life, liberty, or property, without due
process of law.41 Section 22 guarantees privacy: The right of the
people to privacy is recognized and shall not be infringed.42
Although the federal constitution sets the minimum
protections afforded to individual liberty and privacy interests,
the Alaska Constitution often provides more protection.43 We have
specifically recognized that Alaskas guarantee of privacy is
broader than the federal constitutions:
Since the citizens of Alaska, with their
strong emphasis on individual liberty,
enacted an amendment to the Alaska
Constitution expressly providing for a right
to privacy not found in the United States
Constitution, it can only be concluded that
the right is broader in scope than that of
the Federal Constitution.[44]
We have similarly declared Alaskas constitutional guarantee of
individual liberty to be more protective.45
We determine the boundaries of individual rights
guaranteed under the Alaska Constitution by balancing the
importance of the right at issue against the states interest in
imposing the disputed limitation.46 When a law places substantial
burdens on the exercise of a fundamental right, we require the
state to articulate a compelling [state] interest47 and to
demonstrate the absence of a less restrictive means to advance
[that] interest.48 But when the law interferes with an
individuals freedom in an area that is not characterized as
fundamental, we require the state to show a legitimate interest
and a close and substantial relationship between its interest and
its chosen means of advancing that interest.49
1. Importance of right to choose or reject medication
In the past we have recognized that Alaskas
constitutional rights of privacy and liberty encompass the
prerogative to control aspects of ones personal appearance,50
privacy in the home,51 and reproductive rights.52 We have noted
that few things [are] more personal than ones own body,53 and we
have held that Alaskas constitutional right to privacy clearly .
. . shields the ingestion of food, beverages or other substances.54
Because psychotropic medication can have profound and
lasting negative effects on a patients mind and body, we now
similarly hold that Alaskas statutory provisions permitting
nonconsensual treatment with psychotropic medications implicate
fundamental liberty and privacy interests.55
We are hardly the first court to reach this conclusion.
A number of state supreme courts have declared that the right to
refuse psychotropic medication is fundamental; we find their
opinions to be both instructive and persuasive.56
In Rogers v. Commissioner of the Department of Mental
Health, the Supreme Judicial Court of Massachusetts held that a
committed mental patient could not be forcibly medicated with
antipsychotic drugs unless a court determined both that he was
incompetent and that he would have consented to the
administration of the drugs if he was competent.57 Although the
courts opinion relied on Massachusettss statutory and common law,
rather than on interpretation of the state constitution, the
court emphasized the constitutional and common law origins of
[e]very competent adult[s] . . . right to [forgo] treatment, or
even cure, if it entails what for him are intolerable
consequences or risks however unwise his sense of values may be
in the eyes of the medical profession. 58 The court further
emphasized that mentally ill patients have dignity and worth
equal to other individuals; on this basis, the court held that a
committed mental patient is entitled to an independent judicial
determination of whether the patient would have consented to
treatment with psychotropic drugs.59 And the court explicitly
rejected the argument that a substituted judgment determination
of this kind could safely be left to the treating doctors rather
than the courts.60
In Rivers v. Katz, the New York Court of Appeals
similarly located a persons right to control his medical
treatment in state common law but went on to declare that [t]his
fundamental common-law right is coextensive with the patients
liberty interest protected by the due process clause of our State
Constitution.61 It wrote,
In our system of a free government, where
notions of individual autonomy and free
choice are cherished, it is the individual
who must have the final say in respect to
decisions regarding his medical treatment in
order to insure that the greatest possible
protection is accorded his autonomy and
freedom from unwanted interference with the
furtherance of his own desires[.][62]
While acknowledging the states police power to forcibly
medicate mental patients in emergency situations a situation not
at issue in the case before us the court held that in New York,
decisions to forcibly medicate persons in all other circumstances
must be made by the courts.63 If the court concludes that the
patient lacks the capacity to determine the course of his own
treatment, the court must [then] determine whether the proposed
treatment is narrowly tailored to give substantive effect to the
patients liberty interest, taking into consideration all relevant
circumstances, including the patients best interests, the
benefits to be gained from the treatment, the adverse side
effects associated with the treatment and any less intrusive
alternative treatments.64
The Minnesota Supreme Court reached a similar result in
Jarvis v. Levine.65 It held that Minnesotas constitutional
guarantee of privacy begins with protecting the integrity of ones
own body and includes the right not to have it altered or invaded
without consent. Commitment to an institution does not eliminate
this right. When intrusive treatment is proposed, the
professional judgment of medical personnel insufficiently
protects this basic human right.66 Thus, in Minnesota, the
forcible medication of a committed mental patient requires both a
judicial finding of incapacity to give informed consent and a
judicial hearing to determine the necessity and reasonableness of
the treatment.67
Most recently, the Ohio Supreme Court held in Steele v.
Hamilton County Community Mental Health Board that the state
could forcibly medicate a mental patient under its parens patriae
authority only after a court had found, by clear and convincing
evidence, that (1) the patient does not have the capacity to give
or withhold informed consent regarding his/her treatment, (2) it
is in the patients best interest to take the medication, i.e.,
the benefits of the medication outweigh the side effects, and (3)
no less intrusive treatment will be as effective in treating the
mental illness.68 Ruling that the right to refuse medical
treatment is a fundamental right in our country, where personal
security, bodily integrity, and autonomy are cherished liberties,
the court emphasized that [t]hese liberties were not created by
statute or case law . . . [r]ather, they are rights inherent in
every individual that find explicit protection under the Ohio
Constitution.69
Given the nature and potentially devastating impact of
psychotropic medications70 as well as the broad scope of the
Alaska Constitutions liberty and privacy guarantees we now
similarly hold that the right to refuse to take psychotropic
drugs is fundamental; and we further hold that this right must
extend equally to mentally ill persons, so that the mentally ill
are not treated as persons of lesser status or dignity because of
their illness.71
When no emergency exists, then, the state may override
a mental patients right to refuse psychotropic medication only
when necessary to advance a compelling state interest and only if
no less intrusive alternative exists.72
2. Importance of countervailing state interests
API argues that medicating Myers would serve two
compelling state interests: it would prevent Myers from harming
herself or others, and would ameliorate Myerss condition. These
interests, API argues, find legitimate sources in two traditional
state powers: the states police power and its parens patriae
duty.73
a. Police power
API argues that the states police power is implicated
here because the superior court found that Myers was a danger to
herself and others. Just as citizens have a right to some
protection from the state, API argues, the state has a legitimate
and compelling interest in the physical safety of its citizens.
In APIs view, this interest is sufficient to overcome a patients
right to refuse psychotropic medication.
In an emergency situation, API might be correct.
Indeed, the Supreme Court of Ohio has so held, ruling that the
police power can justify medication when the state perceives an
imminent threat of harm.74 But that is not the situation here.
As already mentioned, this case centers on the use of
psychotropic medication in non-emergency situations.75 And API
has not maintained that Myers posed an imminent threat of harm to
herself or anyone else after she was committed for treatment at
API. In these circumstances, the states power of civil
commitment sufficed to meet its police-power interest, so we fail
to see how the issue of medication implicates the states police
power at all:
If there is no emergency, hospital personnel
are in no danger; the only purpose of
forcible medication in these circumstances
would be to help the patient. But the basic
premise of the right to privacy is the
freedom to decide whether we prefer to be
helped, or to be left alone.[76]
Indeed, it seems noteworthy that the statutory
provision that governs petitions to administer psychotropics in
non-emergency situations makes no mention of the police power,
and does not require a treatment facility to make any showing of
institutional risk or danger to others as a condition for
authorizing treatment.77 The applicable statutes allow medication
to be authorized without any finding judicial or medical that
the patient poses a danger.78
The states police power its power to protect others
from Myers thus provides no justification, compelling or
otherwise, for API to override Myerss choice to accept or refuse
psychotropic medication.
b. Parens patriae
API proposes a second compelling interest: the states
parens patriae obligation its duty to protect Myers from
herself. The doctrine of parens patriae refers to the inherent
power and authority of the state to protect the person and
property of an individual who lack[s] legal age or capacity.79
Because the superior court found Myers incapable of making
informed decisions about her mental illness, API reasons that the
state must be permitted to make those decisions for her.80
We readily agree that the states parens patriae
obligation does give it a compelling interest in administering
psychotropic medication to unwilling mental patients in some
situations.81 But this simply raises the difficult question: does
the current statutory scheme use an overly intrusive means to
attain the states interest by failing to require an independent
judicial determination of the patients best interests? To answer
this question, we turn to the third step of the constitutional
balancing test, the least intrusive alternative requirement.
3. Least intrusive means requirement
Although API acknowledges that its patients best
interests must be considered, it insists that the superior courts
order must be affirmed because the current statutory scheme
already meets this criterion by requiring the petitioning
facilitys physicians to determine, before they petition for
authorization, that psychotropic drugs would be in their patients
best interests.82 API maintains that, so long as doctors make
this determination, there is no need for the court to give
further consideration to the issue in deciding whether to
authorize nonconsensual treatment.
We disagree. In our view, before a state may
administer psychotropic drugs to a non-consenting mentally ill
patient in a non-emergency setting, an independent judicial best
interests determination is constitutionally necessary to ensure
that the proposed treatment is actually the least intrusive means
of protecting the patient.
API argues that its doctors can be trusted to
adequately protect patients constitutional interests and claims
that this is the legislatures position, too. In APIs view, the
current statutory scheme reflects a legislative belief that
doctors alone are the proper arbiters of patients best interests.
And API asserts that its medical staff properly arbitrated here
by determining that psychotropics were in Myerss best interest
and represented the least intrusive means available to advance
the states interest in her welfare.
But the issue is not one of medical competence or
expertise. As we have already seen, the right at stake here the
right to choose or reject medical treatment finds its source in
the fundamental constitutional guarantees of liberty and privacy.
The constitution itself requires courts, not physicians, to
protect and enforce these guarantees. Ultimately, then, whether
Myerss best interests will be served by allowing the state to
make a vital choice that is properly hers presents a
constitutional question; and though the answer certainly must be
fully informed by medical advice received with appropriate
deference, in the final analysis the answer must take the form of
a legal judgment that hinges not on medical expertise but on
constitutional principles aimed at protecting individual choice.
Apart from this overarching need to ensure that courts
ultimately decide constitutionally based questions, a secondary
factor that militates in favor of independent judicial review of
best-interests issues is the inherent risk of procedural
unfairness that inevitably arises when a public treatment
facility possesses unreviewable power to determine its own
patients best interests. Many cases describe the unavoidable
tensions between institutional pressures and individual best
interests that can arise in this setting: The doctors who are
attempting to treat as well as to maintain order in the hospital
have interests in conflict with those of their patients who may
wish to avoid medication. . . . Economic considerations may also
create conflicts[.]83 Courts and commentators alike have
documented numerous instances in which these tensions have
actually resulted in abuse by those claiming to act in [a
patients] best interests.84 And even in institutional settings
such as prisons, where judicial review of treatment decisions has
traditionally not been required, case law strongly suggests that
at a minimum, a formal system of independent administrative
review may be necessary to guarantee patients basic due process
rights.85 Notably, in Alaska, no formal system for independent
internal review exists for best interests determinations made by
treating physicians at state institutions like API because,
despite an express statutory mandate, the Department of Health
and Social Services has not yet adopted regulations establishing
formal procedures and standards for treating mental patients with
psychotropic drugs.86
As the Minnesota Supreme Court pointed out in
addressing the need for judicial determination of patients best
interests,
When medical judgments collide with a
patients fundamental rights, . . . it is the
courts, not the doctors, who possess the
necessary expertise. . . . [T]he final
decision to accept or reject a proposed
medical procedure and its attendant risks is
ultimately not a medical decision, but a
personal choice.[87]
The Supreme Judicial Court of Massachusetts reached the
same conclusion, emphasizing that a judicial resolution of best
interests is crucial precisely because decisions based on
personal choice often make little sense from a strictly medical
perspective:
The defendants argue that they, as doctors,
should be responsible for making treatment
decisions for involuntarily committed
patients, whether competent or not. We do not
agree. Every competent adult has a right to
[forgo] treatment, or even cure, if it
entails what for him are intolerable
consequences or risks however unwise his
sense of values may be in the eyes of the
medical profession. [88]
And Ohios Supreme Court has similarly described the task of
deciding an involuntarily committed mentally ill persons interest
in refusing [psychotropic] medication as a uniquely judicial
function.89
The Minnesota Supreme Court aptly underscored the
constitutional underpinnings for its decision that this issue
must be directed to the courts:
The courts responsibility for the patient
does not end at commitment. Commitment to an
institution does not deprive an individual of
all legal rights, . . . especially
fundamental rights guaranteed by our
Constitution. It would be both unreasonable
and unnecessary for the courts to become
involved in every post-commitment treatment
decision; [but] it is equally clear that the
courts cannot abdicate all responsibility for
protecting a committed persons fundamental
rights merely because some degree of medical
judgment is implicated.[90]
We agree with these decisions and join them in
concluding that the right to refuse psychotropic medication is a
fundamental right, though not an absolute one; that the ultimate
responsibility for providing adequate protection of that right
rests with the courts; and that adequate protection of that right
can only be ensured by an independent judicial determination of
the patients best interests considered in light of any available
less intrusive treatments.91
4. Best-interests criteria
Having determined that courts must engage in best-
interest inquiries, we believe that some discussion is in order
concerning appropriate criteria to guide courts on this issue.
Evaluating whether a proposed course of psychotropic
medication is in the best interests of a patient will inevitably
be a fact-specific endeavor. At a minimum, we think that courts
should consider the information that our statutes direct the
treatment facility to give to its patients in order to ensure the
patients ability to make an informed treatment choice.92 As
codified in AS 47.30.837(d)(2), these items include:
(A) an explanation of the patients diagnosis
and prognosis, or their predominant symptoms,
with and without the medication;
(B) information about the proposed
medication, its purpose, the method of its
administration, the recommended ranges of
dosages, possible side effects and benefits,
ways to treat side effects, and risks of
other conditions, such as tardive dyskinesia;
(C) a review of the patients history,
including medication history and previous
side effects from medication;
(D) an explanation of interactions with
other drugs, including over-the-counter
drugs, street drugs, and alcohol; and
(E) information about alternative treatments
and their risks, side effects, and benefits,
including the risks of nontreatment[.][93]
Considering these factors will be crucial in establishing the
patients best interests as well as in illuminating the existence
of alternative treatments.94
And here, too, we find the work of other state courts
to be helpful. The Supreme Court of Minnesota has held that in
order to determine the necessity and reasonableness of a
treatment, courts should balance [a] patients need for treatment
against the intrusiveness of the prescribed treatment.95 Factors
that the Minnesota court believed should be considered included:
(1) the extent and duration of changes in
behavior patterns and mental activity
effected by the treatment;
(2) the risks of adverse side effects;
(3) the experimental nature of the
treatment;
(4) its acceptance by the medical community
of the state; and
(5) the extent of intrusion into the patients
body and the pain connected with the
treatment.[96]
We find these approaches to be sensible.
Finally, we note that the parties have disputed the
standard of proof that the state should be required to meet in
establishing the patients best interests. API argues for a
preponderance of the evidence standard, but it offers no legal
authority to support that position. Other courts that have
required best-interests determinations in this area have
uniformly adopted the clear and convincing standard.97 Moreover,
our existing statutory scheme already adopts this standard for
findings required to authorize psychotropic medication.98 We see
no reason to dilute the standard governing the best-interests
determination, and hold that the clear and convincing evidence
standard controls the issue.
5. Substituted-judgment standard
Myers separately argues that we should follow the
example of the Supreme Judicial Court of Massachusetts and
require courts authorizing medication to make an additional
finding applying the substituted judgment approach.99 The
substituted-judgment approach would require courts to attempt to
determine what course of treatment an incompetent patient would
likely choose if currently capable of making an informed
decision.
But unlike the statutory scheme at issue in
Massachusetts cases, our own statutes incorporate provisions
designed to achieve the same goals as the substituted- judgment
approach, but by a slightly different path. As already mentioned
above, when a treatment facility files a petition for
authorization to treat a mentally ill patient with psychotropic
drugs, Alaska law requires the appointment of a visitor to help
gather relevant information for the hearing. One of the two core
duties assigned to the visitor under AS 47.30.839(d) is to
investigate, document, and report any prior statements oral or
written that the patient might have made while competent that
expressed wishes regarding medication.100 Moreover, as also
described above, if the information gathered and documented by
the visitor enables the court to find that the patient has
expressed a prior competent desire not to be medicated, then the
court may not authorize treatment; this emerges from the language
of AS 47.30.839(g), which requires the court to order treatment
only if it finds that a patient is presently incompetent and that
the patient was incompetent at the time of any previously
expressed wishes reported by the visitor:
(g) If the court determines that the patient
is not competent to provide informed consent
and, by clear and convincing evidence, was
not competent to provide informed consent at
the time of previously expressed wishes
documented [by the visitor] under (d)(2) of
this section, the court shall approve the
facilitys proposed use of psychotropic
medication.[101]
Because neither party has briefed or addressed this
provision on appeal, and because Myers did not attempt to rely on
it below,102 we need not decide its exact scope and meaning, and
express no opinion on the point here. At least arguably, though,
it might be read to give courts authority to deny a petition if
the patient made prior competent statements expressing a desire
not to be medicated; and if so, it would seem to serve a similar
purpose to that of the substituted-judgment approach advocated by
Myers. Since the meaning of this provision is not at issue here
and remains open for future consideration, and since the
provision may ultimately be interpreted as performing many of the
same functions as the substituted-judgment approach, we see no
present need to decide Myerss argument urging us to adopt that
approach.
IV. CONCLUSION
We conclude that the Alaska Constitutions guarantees of
liberty and privacy require an independent judicial determination
of an incompetent mental patients best interests before the
superior court may authorize a facility like API to treat the
patient with psychotropic drugs. Because the superior court did
not determine Myerss best interest before authorizing
psychotropic medications, we VACATE its involuntary treatment
order. Although no further proceedings are needed here because
Myerss case is now technically moot, we hold that in future non-
emergency cases a court may not permit a treatment facility to
administer psychotropic drugs unless the court makes findings
that comply with all applicable statutory requirements and, in
addition, expressly finds by clear and convincing evidence that
the proposed treatment is in the patients best interests and that
no less intrusive alternative is available.
_______________________________
1 AS 47.30.839(g) (emphasis added).
2 Alaska Const. art. I, 7.
3 Alaska Const. art. I, 22.
4 Cf. Rust v. State, 582 P.2d 134, 138-40 (Alaska 1978).
5 See AS 47.30.836; AS 47.30.838.
6 Steele v. Hamilton County Cmty. Mental Health Bd., 736
N.E.2d 10, 15 n.3 (Ohio 2000) (internal citations omitted).
7 API did not dispute that psychotropic medication can
cause potentially severe side effects.
8 Jarvis v. Levine, 418 N.W.2d 139, 145 (Minn. 1988)
(quoting Earl Plotkin, Limiting the Therapeutic Orgy: Mental
Patients Right to Refuse Treatment, 72 Nw. U. L. Rev. 461, 475-76
(1977)).
9 Jarvis, 418 N.W.2d at 145.
10 Steele, 736 N.E.2d at 17 (quoting Bruce J. Winick, The
Right to Refuse Mental Health Treatment 72-73 (1997)).
11 Id. (quoting Winick, The Right to Refuse Mental Health
Treatment 72-73 (1997)).
12 Id. (quoting Winick, The Right to Refuse Mental Health
Treatment 72-73 (1997)).
13 Id. (quoting Winick, The Right to Refuse Mental Health
Treatment 72-73 (1997)).
14 Riggins v. Nevada, 504 U.S. 127, 134 (1992) (The
purpose of the drugs is to alter the chemical balance in a
patients brain, leading to changes, intended to be beneficial, in
his or her cognitive processes.).
15 See, e.g., Jarvis, 418 N.W.2d at 146; In re K.K.B., 609
P.2d 747, 749 (Okla. 1980) ([W]e deal today only with consent to
so called organic therapy which can change a patients behavior
without his cooperation such as electroshock, psychosurgery and,
as in the instant case, the use of anti-psychotic drugs. These
treatments are intrusive in nature and an invasion of the body.)
(internal citations omitted).
16 See AS 47.30.836, Psychotropic medication in
nonemergency, and AS 47.30.838, Psychotropic medication in
emergencies.
17 Id. AS 47.30.839 sets out the procedures for obtaining
a court order for the forcible administration of psychotropic
medication in both emergency and non-emergency situations.
18 See AS 47.30.700-.815 for procedures governing
involuntary admission of mental patients for treatment.
19 See AS 47.30.735(c); AS 47.30.725(b).
20 AS 47.30.915(7) defines gravely disabled to mean a
condition in which a person as a result of mental illness
(A) is in danger of physical harm arising
from such complete neglect of basic needs for
food, clothing, shelter, or personal safety
as to render serious accident, illness, or
death highly probable if care by another is
not taken; or
(B) will, if not treated, suffer or continue
to suffer severe and abnormal mental,
emotional, or physical distress, and this
distress is associated with significant
impairment of judgment, reason, or behavior
causing a substantial deterioration of the
persons previous ability to function
independently.
21 AS 47.30.730(a)(2) & (3).
22 Other state courts have noted the nearly unanimous
modern trend in the courts, and among psychiatric and legal
commentators that there is no significant relationship between
the need for hospitalization of mentally ill patients and their
ability to make treatment decisions. Rivers v. Katz, 495 N.E.2d
337, 342 (N.Y. 1986); see also Rogers v. Commr of the Dept of
Mental Health, 458 N.E.2d 308, 314 (Mass. 1983) (involuntarily
committed patients are competent until adjudicated incompetent);
Davis v. Hubbard, 506 F. Supp. 915, 935 (N.D. Ohio 1980) (there
is no necessary relationship between mental illness and the
ability to give informed consent).
23 See AS 47.30.836(3); AS 47.30.839(g).
24 See AS 47.30.839(g).
25 AS 47.30.837(d)(2) provides:
informed means that the evaluation facility
or designated treatment facility has given
the patient all information that is material
to the patients decision to give or withhold
consent, including
(A) an explanation of the patients diagnosis
and prognosis, or their predominant symptoms,
with and without the medication;
(B) information about the proposed
medication, its purpose, the method of its
administration, the recommended ranges of
dosages, possible side effects and benefits,
ways to treat side effects, and risks of
other conditions, such as tardive dyskinesia;
(C) a review of the patients history,
including medication history and previous
side effects from medication;
(D) an explanation of interactions with
other drugs, including over-the-counter
drugs, street drugs, and alcohol;
(E) information about alternative treatments
and their risks, side effects, and benefits,
including the risks of nontreatment; and
(F) a statement describing the patients
right to give or withhold consent to the
administration of psychotropic medications in
nonemergency situations, the procedure for
withdrawing consent, and notification that a
court may override the patients refusal[.]
26 AS 47.30.837 provides, in relevant part:
(c) . . . If the facility has reason to
believe that the patient is not competent to
make medical or mental health treatment
decisions and the facility wishes to
administer psychotropic medication to the
patient, the facility shall follow
procedures of AS 47.30.839.
(d) In this section,
(1) competent means that the patient
(A) has the capacity to assimilate relevant
facts and to appreciate and understand the
patients situation with regard to those
facts, including the information described in
(2) of this subsection;
(B) appreciates that the patient has a
mental disorder or impairment, if the
evidence so indicates; denial of a
significantly disabling disorder or
impairment, when faced with substantial
evidence of its existence, constitutes
evidence that the patient lacks the
capability to make mental health treatment
decisions;
(C) has the capacity to participate in
treatment decisions by means of a rational
thought process; and
(D) is able to articulate reasonable
objections to using the offered medication[.]
27 See also AS 47.30.839(g); AS 47.30.825(c).
28 AS 47.30.837(d)(1)(B).
29 AS 47.30.839(d).
30 Id.
31 See AS 47.30.839(e).
32 AS 47.30.839(f).
33 AS 47.30.839(g).
34 Hayes v. Charney, 693 P.2d 831, 834 (Alaska 1985)
(quoting Doe v. State, 487 P.2d 47, 53 (Alaska 1971)).
35 Id. (quoting Doe, 487 P.2d at 53).
36 See Doe, 487 P.2d at 53.
37 Brandon v. Dept of Corr., 865 P.2d 87, 92 n.6 (Alaska
1993).
38 Washington v. Harper, 494 U.S. 210, 218-19 (1990).
39 Id. at 219; see also State ex. rel. Jones v.
Gehardstein, 416 N.W.2d 883, 888 (Wis. 1987).
40 Alaska Const. art. I, 1.
41 Alaska Const. art. I, 7.
42 Alaska Const. art. I, 22.
43 See, e.g., Valley Hosp. Assn v. Mat-Su Coalition, 948
P.2d 963, 966-67 (Alaska 1997).
44 Anchorage Police Dept Employees Assn v. Municipality of
Anchorage, 24 P.3d 547, 550 (Alaska 2001) (quoting Ravin v.
State, 537 P.2d 494, 514-15 (Alaska 1975) (Boochever, J., and
Connor, J., concurring)).
45 See, e.g., Breese v. Smith, 501 P.2d 159, 170 (Alaska
1972).
46 See, e.g., Sampson v. State, 31 P.3d 88, 91 (Alaska
2001).
47 Ranney v. Whitewater Engg, 122 P.3d 214, 222 (Alaska
2005).
48 Sampson, 31 P.3d at 91.
49 Ranney, 122 P.3d at 222 (quoting Sampson, 31 P.3d at
91).
50 See Breese, 501 P.2d at 170.
51 See Ravin, 537 P.2d at 500, 502-03.
52 See Valley Hosp. Assn, 948 P.2d at 969.
53 Breese, 501 P.2d at 169; but see Sampson, 31 P.3d at 92
(holding that the constitutional right to control ones own body
does not create a constitutional right to assisted suicide).
54 Gray v. State, 525 P.2d 524, 528 (Alaska 1974).
55 The issue before us is a constitutional question to
which we apply our independent judgment. Constitutional
provisions, we have held, should be given a reasonable and
practical interpretation in accordance with common sense. Arco
Alaska, Inc. v. State, 824 P.2d 708, 710 (Alaska 1992) (citing
Kochutin v. State, 739 P.2d 170, 171 (Alaska 1987)).
56 In addressing the importance of a committed patients
right to choose or refuse psychotropic medications, APIs briefing
relies heavily on United States Supreme Court cases dealing with
the forced medication of mentally ill prisoners. See Sell v.
United States, 539 U.S. 166 (2003) (defendant awaiting federal
criminal trial); Riggins v. Nevada, 504 U.S. 127 (1992)
(defendant awaiting state criminal trial); Washington v. Harper,
494 U.S. 210 (1990) (convicted state prisoner). In contrast to
the state cases we rely on, which deal with civilly committed
patients, the federal cases cited by API have little value here
because prisoners rights differ markedly from the rights of
civilly committed mental patients. The prisoners involved in
most of those cases had greatly diminished liberty interests
because they had been convicted and incarcerated for criminal
offenses, not because they were mentally ill. Further, in all of
those prisoner cases even Sell v. United States, which involved
a mentally ill prisoner awaiting trial the extraordinary
security risks inherent in managing incarcerated criminal
defendants greatly increased the strength of the governments
administrative and institutional interests in providing mentally
ill prisoners with medical treatment. Cf. In re Qawi, 81 P.3d
224, 232 (Cal. 2004) (even competent prison inmate can be
forcibly medicated if he is a danger to himself and others and
treatment is in his best medical interest). Here, API has never
asserted that Myers posed an imminent threat of danger to any of
APIs patients or staff, and it has never suggested that its
institutional or administrative interests compelled it to treat
her with psychotropic drugs.
57 Rogers v. Commissioner of Dept of Mental Health, 458
N.E.2d 308, 311 (Mass. 1983).
58 Id. at 310, 314 (quoting Harnish v. Childrens Hosp.
Med. Ctr., 439 N.E.2d 240, 242 (Mass. 1982) (internal citations
omitted)).
59 Id. at 315 (To protect the incompetent person within
its power, the State must recognize the dignity and worth of such
a person and afford to that person the same panoply of rights and
choices it recognizes in competent persons.).
60 See id. at 317.
61 Rivers v. Katz, 495 N.E.2d 337, 341 (N.Y. 1986) (It is
a firmly established principle of the common law of New York that
every individual of adult years and sound mind has a right to
determine what shall be done with his own body and to control the
course of his medical treatment.) (internal citations omitted).
62 Id.
63 Id. at 343-44.
64 Id. at 344.
65 Jarvis v. Levine, 418 N.W.2d 139 (Minn. 1988).
66 Id. at 148.
67 Id. at 148 n.7.
68 Steele v. Hamilton County Cmty. Mental Health Bd., 736
N.E.2d 10, 21 (Ohio 2000).
69 Id. at 15.
70 See above, part III.A.
71 Rivers, 495 N.E. 2d at 341; see also Rogers, 458 N.E.2d
at 315 (To protect the incompetent person within its power, the
State must recognize the dignity and worth of such a person and
afford to that person the same panoply of rights and choices it
recognizes in competent persons.).
72 Cf. Valley Hosp. Assn, 948 P.2d at 969.
73 APIs brief actually claims three interests; but one of
the them the states duty to provide treatment to committed
mental patients, established in Rust v. State, 582 P.2d 134
(Alaska 1978) derives from the states parens patriae authority,
id. at 139-40, so we treat the two claimed interests as one.
74 Steele, 736 N.E.2d at 18 (holding this to be the only
situation in which the police power can serve as a compelling
justification).
75 See AS 47.30.839(a)(2).
76 In re K.K.B., 609 P.2d 747, 751 (Okla. 1980).
77 Under AS 47.30.839(g), a court can grant authorization
to medicate without ever considering whether or not the patient
poses a threat of harm to anyone. And a treatment facility may
seek involuntary medication of a patient in a non-crisis
situation, under AS 47.30.839(a)(2), if the facility has reason
to believe the patient is incapable of giving informed consent
and simply wishes to.
78 See AS 47.30.836, .839.
79 Pub. Defender Agency v. Superior Court, Third Judicial
Dist., 534 P.2d 947, 949 (Alaska 1975); Blacks Law Dictionary
1084 (8th ed. 2004).
80 API also more narrowly and forcefully argues that our
decision in Rust v. State, 582 P.2d 134 (Alaska 1978),
effectively concluded that the states parens patriae duty
affirmatively required API to give Myers the medications that its
doctors recommended. On this point, we disagree. We noted in
Rust that some courts have reasoned from the parens patriae
principle to find that mentally ill persons, once committed, have
a right to treatment. Id. at 140. But that observation has no
direct bearing here; this case involves the right of a committed
patient to refuse forced treatment, not the treatment facilitys
general obligation to provide treatment to willing patients upon
their commitment.
81 To conclude otherwise would mean that the state could
never use psychotropic drugs without the patients consent a
position that Myers does not assert.
82 API supports its claim that the current statutory
regime requires a medical determination of best interests by
citing AS 47.30.523, AS 47.30.547, AS 47.30.590, AS 47.30.655, AS
47.30.660, AS 47.30.690, AS 47.30.785, AS 47.30.825,
AS 47.30.870, AS 47.30.875, and AS 47.30.958. Our decision that
a judicial determination of best interests is required makes it
unnecessary to consider these provisions.
83 Rogers, 458 N.E.2d at 317-18 n.19.
84 Id. at 320-21. See, e.g., Rennie v. Klein, 476 F.
Supp. 1294, 1299 (D.N.J. 1979) (the medical director of the
Marlboro New Jersey State Hospital stated in an office memorandum
that the hospital uses medication as a form of control and as a
substitute for treatment); Halderman v. Pennhurst State Sch. &
Hosp., 446 F. Supp. 1295, 1307 (E.D. Pa. 1977) (dangerous
psychotropic drugs were used on mentally retarded persons for
purposes of behavior control and staff convenience, rather than
for legitimate treatment needs); Clites v. State, 322 N.W.2d 917,
921 (Iowa App. 1982) (damages awarded where major tranquilizers
used on mentally retarded child as a convenience or expediency
program rather than a therapeutic program); Jessica Litman, Note,
A Common Law Remedy For Forcible Medication of the
Institutionalized Mentally Ill, 82 Colum. L. Rev. 1720, 1721 n.9
(1982) (describing cases in which psychotropic drugs were found
to be used for the convenience of the staff and for punishment of
patients); Alexander D. Brooks, The Constitutional Right to
Refuse Antipsychotic Medications, 8 Bull. Am. Acad. of Psychiatry
and Law 179, 206 (1980) (staff too often abuses the management
function of medications and slips into the use of medications for
its own convenience); Edward Opton, Psychiatric Violence Against
Prisoners: When Therapy Is Punishment, 45 Miss. L.J. 605, 623
(1974) ([I]n mental institutions the bureaucratic needs of the
institution for passivity, obedience and submission take
precedence over the therapeutic needs of the patients for
development of autonomy, initiative, and self-control); George E.
Crane, Clinical Psychopharmacology in Its 20th Year, 181 Science
124, 125 (1973) (drugs are prescribed to solve all types of
management problems).
85 See, e.g., Washington v. Harper, 494 U.S. 210, 233
(1990) (upholding Washingtons statutory system providing for
review of medication decisions for mentally ill pretrial
prisoners by an administrative hearing committee made up of
individuals who were not involved in the inmates current
treatment or diagnosis, but strongly suggesting that the review
committees independence was key to finding Washingtons procedure
adequate); cf. In re Qawi, 81 P.3d 224, 232 (Cal. 2004) (citing
Harper, 494 U.S. at 229, for the proposition that even a
competent prison inmate, for example, may be forcibly medicated,
consistent with the federal due process clause, if it is
determined that he is a danger to himself and others, and that
the treatment is in his medical interest, as determined by an
independent medical board).
86 See AS 47.30.660(b)(14) & (16).
87 Jarvis, 418 N.W.2d at 147-48 (original emphasis).
88 Rogers, 458 N.E.2d at 314 (citing Harnish v. Childrens
Hosp. Med. Ctr., 439 N.E.2d 240, 242 (1982)); cf. Rivers v. Katz,
495 N.E.2d 337, 341 (N.Y. 1986) (a patients right to determine
the course of his medical treatment [is] paramount . . . and [ ]
the right of a competent adult to refuse medical treatment must
be honored, even though the recommended treatment may be
beneficial, or even necessary to preserve the patients life);
Steele, 736 N.E.2d at 20 (the patients wishes . . . will be
honored, no matter how foolish some may perceive that decision to
be).
89 Steele, 736 N.E.2d at 22. Cf. Price v. Sheppard, 239
N.W.2d 905, 912-13 (Minn. 1976) (Because the potential impact of
the more intrusive forms of treatment is so great, we are
reluctant in those cases where the patient or guardian refuse
their consent, to leave the imposition of the more intrusive
forms of treatment solely within the discretion of medical
personnel at our state hospitals.); Jarvis, 418 N.W.2d at 148
([w]hen intrusive treatment is proposed, the professional
judgment of medical personnel insufficiently protects this basic
human right).
90 Jarvis, 418 N.W.2d at 147 (original emphasis).
91 Cf. Steele, 736 N.E.2d at 21 (the state can forcibly
medicate a mental patient under its parens patriae authority only
after a court finds, by clear and convincing evidence, that (1)
the patient does not have the capacity to give or withhold
informed consent regarding his/her treatment, (2) it is in the
patients best interest to take the medication, i.e., the benefits
of the medication outweigh the side effects, and (3) no less
intrusive treatment will be as effective in treating the mental
illness); and Rivers v. Katz, 495 N.E.2d 337, 344 (N.Y. 1986) (if
a court concludes that the patient lacks the capacity to
determine the course of his own treatment, the court must then
determine whether the proposed treatment is narrowly tailored to
give substantive effect to the patients liberty interest, taking
into consideration all relevant circumstances, including the
patients best interests, the benefits to be gained from the
treatment, the adverse side effects associated with the treatment
and any less intrusive alternative treatments).
92 AS 47.30.837(d)(2).
93 Id.
94 See id., subsection (d)(2)(E).
95 Price, 239 N.W.2d at 913.
96 See id.
97 See, e.g., Steele, 736 N.E.2d at 20; In re M.P., 510
N.E.2d 645, 647 (Ind. 1987); People v. Medina, 705 P.2d 961, 973
(Colo. 1985).
98 See AS 47.30.839(g).
99 See Rogers, 458 N.E.2d at 323.
100 In relevant part, AS 47.30.839(d) says:
Upon the filing of a petition . . . the
court shall direct the office of public
advocacy to provide a visitor to assist the
court in investigating the issue of whether
the patient has the capacity to give or
withhold informed consent to the
administration of psychotropic medication.
The visitor shall gather pertinent
information and present it to the court in
written or oral form at the hearing. The
information must include documentation of the
following:
. . . .
(2) any expressed wishes of the patient
regarding medication, including wishes that
may have been expressed in a power of
attorney, a living will, an advance health
care directive . . . , or oral statements of
the patient, including conversations with
relatives and friends that are significant
persons in the patients life as those
conversations are remembered by the relatives
and friends; oral statements of the patient
should be accompanied by a description of the
circumstances under which the patient made
the statements, when possible.
101 (Emphasis added.)
102 In fact it appears that the visitor in this case was
unable to submit a complete report. Myers voiced no objection,
did not ask for a more complete investigation of prior expressed
wishes, and did not ask for a ruling addressing the point. The
superior courts decision made no finding on the issue of prior
expressed wishes, and Myers has not pursued that point on appeal.
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