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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Wetherhorn v. Alaska Psychiatric Institute (04/13/2007) sp-6116
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
| ROSLYN WETHERHORN, | ) |
| ) Supreme Court No. S- 11939 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-05-00459 PR |
| ) | |
| ALASKA PSYCHIATRIC INSTITUTE, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6116 - April 13, 2007 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, John Suddock, Judge.
Appearances: James B. Gottstein, Law Project
for Psychiatric Rights, Inc., Anchorage, for
Appellant. Laura C. Bottger, Assistant
Attorney General, Anchorage, and David W.
M rquez, Attorney General, Juneau, for
Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
FABE, Justice.
I. INTRODUCTION
Roslyn Wetherhorn appeals two superior court orders:
one approving her involuntary commitment for thirty days and the
other approving the non-consensual administration of psychotropic
medication. Wetherhorn challenges the constitutionality of the
statute relied on by the court to order her involuntary
commitment. She also raises due process and evidentiary
challenges to both orders. We conclude that the commitment
statute is constitutional if construed to require a level of
incapacity so substantial that the respondent cannot survive
safely in freedom. But the masters action in granting a petition
for the administration of psychotropic medication before a
visitors report had been prepared or provided constitutes plain
error. Because we need not determine whether the issues raised
by the facts on record, now moot, meet the gravely disabled
standard as construed, and because the other related challenges
to the commitment order are either improperly preserved or
without merit, we vacate without reversing the order granting the
petition for thirty-day commitment.
II. FACTS AND PROCEEDINGS
On April 4, 2005, Dr. M. Lee of Valley Hospital
initiated an application for the examination of Wetherhorn
pursuant to AS 47.30.705. Alaska Statute 47.30.705 allows a
person to be taken into custody and delivered to the nearest
evaluation facility.1 Dr. Lees application stated that
Wetherhorn was mentally ill and gravely disabled and that
considerations of safety did not allow the initiation of
involuntary commitment proceedings.
On April 5, 2005, Dr. John McKean filed an ex parte
petition for initiation of involuntary commitment pursuant to AS
47.30.710(b). Alaska Statute 47.30.710(b) allows emergency
hospitalization if, after examination, a person is found to be
mentally ill, causing the person to be gravely disabled or to
present a likelihood of serious harm to self or others, and to be
in need of treatment.2 Dr. McKean wrote that Wetherhorn was in a
manic state[,] homeless and non medication compliant x 3 months
in support of the petition. Superior Court Judge Philip Volland
granted the petition the same day.
Also on April 5, 2005, Dr. McKean and Dr. Laurel
Silberschmidt filed a petition for thirty-day commitment,
averring that Wetherhorn was mentally ill and as a result was
both likely to cause harm to [herself] or others and gravely
disabled. The supporting facts were stated as [m]anic state[,]
homeless and no insight and non med compliant x 3 months. No
prospective witnesses were listed in the space provided. The
case was assigned to Superior Court Judge John Suddock and to
Probate Master John E. Duggan.
On April 15, 2005, Dr. Jan Kiele filed a petition for
the administration of psychotropic medication. Master Duggan
issued a notice of hearing and order for appointment of court
visitor on the same day, appointing the Office of Public Advocacy
(OPA) as court visitor and the Public Defender Agency as counsel
for Wetherhorn. This notice also set the hearing on the
involuntary medication petition for 1:30 p.m. that same
afternoon. As a result, the hearings on both the petition for
thirty-day commitment and the petition for the administration of
psychotropic medication were held on the same day.
The combined hearing on April 15, 2005 lasted
approximately fifteen minutes. During this hearing, the
psychiatrist who testified was not separately sworn or qualified
as an expert because his qualifications were carried over from a
previous case. There was no oral or written report presented by
the court visitor as required under AS 47.30.839(d).3
On April 27, 2005, Judge Suddock issued written orders
granting both petitions, nunc pro tunc to April 15, 2005. This
appeal followed.
III. STANDARD OF REVIEW
We apply our independent judgment to the interpretation
of the Alaska Constitution4 and statutes,5 adopting the rule of
law that is most persuasive in light of precedent, reason, and
policy.6 Factual findings in involuntary commitment or
medication proceedings are reviewed for clear error, and we
reverse only if our review of the record leaves us with a
definite and firm conviction that a mistake has been made.7 The
question whether factual findings comport with the requirements
of AS 47.30 presents a legal issue, which we review de novo.8
The superior courts decisions regarding the admissibility of
evidence, including expert testimony, are generally reviewed for
abuse of discretion.9 If admissibility of evidence turns on a
question of law, we apply our independent judgment.10
IV. DISCUSSION
Wetherhorn challenges both the petition for thirty-day
commitment and the petition for the administration of
psychotropic medication. Wetherhorn also raises a claim of
ineffective assistance of counsel and challenges the
qualifications and testimony of the witness in the hearing on
both petitions. We first address Wetherhorns constitutional,
procedural, and evidentiary challenges to the petition for thirty-
day commitment. We then address Wetherhorns challenges to the
petition for the administration of psychotropic medication.
Finally, we address the claims of ineffective assistance of
counsel and alleged errors in the admission of witness testimony.
A. The Petition for Thirty-Day Commitment
1. The constitutionality of AS 47.30.915(7)(B)
The United States Supreme Court has characterized
involuntary commitment for a mental disorder as a massive
curtailment of liberty11 that cannot be accomplished without due
process of law.12 Although the State has a legitimate interest in
providing care to those who represent a threat to themselves or
the community, or who are unable to care for themselves,13 mental
illness alone is insufficient to form a constitutionally adequate
basis for involuntary commitment.14 The Supreme Court has
therefore determined that before a person can be involuntarily
committed, the court must find in addition to mental illness
either: (1) that the person presents a danger to self or others;
or (2) that the person is helpless to avoid the hazards of
freedom either through his own efforts or with the aid of willing
family members or friends.15 The precise wording of these two
additional requirements is left to the states, so long as they
meet the constitutional minimum.16
The two findings required in addition to a finding of
mental illness are each aimed at different types of harm. The
first finding, of danger to self or others, is concerned with
active forms of harm, where the respondent has demonstrated the
affirmative ability or inclination to inflict harm to self or
another person.17 The second finding is concerned with a more
passive condition, whereby the respondent is so unable to
function that he or she cannot exist safely outside an
institutional framework due to an inability to respond to the
essential demands of daily life.18
Alaska statutes address both types of harm. Alaska
Statute 47.30.735(c) permits the court to commit the respondent
to a treatment facility for not more than thirty days if it
finds, by clear and convincing evidence, that the respondent is
mentally ill and as a result is likely to cause harm to the
respondent or others or is gravely disabled. In this case,
Wetherhorn was found to be gravely disabled.
Alaska Statute 47.30.915(7) defines gravely disabled as
follows:
(7) gravely disabled means 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[.]
Wetherhorn concedes that subsection A is constitutional, but she
challenges subsection Bs definition of gravely disabled as
reflecting a standard insufficient to justify the curtailment of
liberty involved in involuntary commitment.
Subsection B was added to AS 47.30.915(7) by the
legislature in 1984.19 The addition was part of a major revision
of the civil commitment statutes undertaken to more adequately
protect the legal rights of persons suffering from mental
illness.20 In testimony before the House Health, Education and
Social Services Standing Committee discussion on the revisions,
the Director of the Division of Mental Health and Developmental
Disabilities of the Department of Health and Social Services
explained that the then-current law only allowed Alaska
Psychiatric Institute (API) to hold people with violent
tendencies and that the addition of the gravely disabled language
would allow API to hold people that need to [be held], but havent
shown a violent tendency enough to hold them. There is a very
significant number who dont fit into [the] present standard, but
can walk out.21 The expert concluded, [o]ur hands are tied behind
our back, when [a] patient walks out. We only attempt to hold
people who are gravely in danger.22 The committee discussion
reveals that the gravely disabled language was added so that a
person can be committed before its too late.23 The addition of
subsection B was thus intended to broaden the scope of civil
commitment standards in order to reach those persons in need of
treatment who did not fit within the pre-1984 statutory criteria,
which required a showing of violent tendencies before a person
could be held involuntarily.24
Essentially, then, the dispute between Wetherhorn and
API is whether API must wait until the danger caused by a
persons mental illness rises to the level indicated by AS
47.30.915(7)(A) before a person may be involuntarily committed.
According to Wetherhorn, only the level of harm described in [AS
47.30.915(7)(A)], i.e., serious accident, illness, or death
highly probable if care by another is not taken, is sufficient to
justify the massive curtailment of liberty which is involuntary
commitment. API, on the other hand, relies on language in
Addington v. Texas, which states that a person need only pose
some danger to self or others25 to argue that the commitment
standard has been properly expanded. We disagree with both
arguments.
APIs citation to Addingtons use of the phrase some
danger26 ignores the United States Supreme Courts repeated
admonition that, given the importance of the liberty right
involved, a person may not be involuntarily committed if they are
dangerous to no one and can live safely in freedom.27 This
standard is certainly higher than the requirement that a person
merely present some danger to herself. API allows that the
language of subsection B requires that the respondent must suffer
distress that rises to the level of genuine and serious
suffering. Moreover, the plain language of subsection B requires
that there be a significant impairment causing a substantial
deterioration.28 Given that subsection B was added nearly ten
years after OConnor v. Donaldson,29 the plain language of the
statute requiring a substantial deterioration of the persons
previous ability to function independently30 appears to respond to
OConnors direction that the State cannot constitutionally confine
without more a nondangerous individual who is capable of
surviving safely in freedom.31
We furthermore agree with the Supreme Court of
Washington that [i]t is not enough to show that care and
treatment of an individuals mental illness would be preferred or
beneficial or even in his best interests.32 Indeed, AS 47.30.730
does require more than a best interests determination. For
example, it requires that the petition for commitment allege that
the evaluation staff has considered but has not found that there
are any less restrictive alternatives available33 and allege with
respect to a gravely disabled respondent that there is reason to
believe that the respondents mental condition could be improved
by the course of treatment sought.34 As further protection, the
statute directs the court to make its findings by clear and
convincing evidence.35
We conclude that in order to be constitutional, AS
47.30.915(7)(B) must be construed so that the distress that
justifies commitment refers to a level of incapacity that
prevents the person in question from being able to live safely
outside of a controlled environment. This construction of the
statute is necessary not only to protect persons against the
massive curtailment of liberty36 that involuntary commitment
represents, but also to protect against a variety of dangers
particular to those subject to civil commitment. For example,
there is a danger that the mentally ill may be confined merely
because they are physically unattractive or socially eccentric37
or otherwise exhibit some abnormal behavior which might be
perceived by some as symptomatic of a mental or emotional
disorder, but which is in fact within a range of conduct that is
generally acceptable.38 A similar concern with the perils of
imposing majoritarian values forbids civil commitment to be based
on the justification that a person would thereby enjoy a higher
standard of living because, as the OConnor Court explained,
mental illness, without more, does not disqualify a person from
preferring his home to the comforts of an institution.39 The
level of incapacity represented by AS 47.30.915(7)(B) must be
such so as to justify the social stigma that affects the social
position and job prospects of persons who have been committed
because of mental illness.40 So construed, AS 47.30.915(7)(B) is
constitutional.
Wetherhorn additionally argues that AS 47.30.915(7)(B)
is unconstitutional because it does not require that the danger
be imminent. She relies on Suzuki v. Yuen, in which a Hawaii
civil commitment statute was determined to be unconstitutional
because it failed to specify that the danger to self or others be
imminent.41 But the United States Supreme Court has not made
imminence a requirement.42 We have not yet addressed the question
whether the concept of imminence is compatible with the passive
nature of harm reflected in the gravely disabled definition or
whether the facts and specific behavior of the respondent
required by AS 47.30.730(a)(7) must include recent acts.43 But we
need not address those issues here, because the facts alleged in
this case were drawn from the recent past. The petition stated
that Wetherhorn had shown a manic state, a lack of insight, and
non-compliance with her medication for the past three months.
And during the hearing, Dr. Kiele testified that Wetherhorn
remained confused and agitated and that her difficulties with
insight had not changed since she had been at the hospital. He
further noted that she had struck people and therefore presented
a direct risk of harm to others and more of an indirect risk of
harm to herself. Because all these examples of specific behavior
were drawn from the recent past, they were sufficient to meet the
evidentiary standards established by those states that have
addressed the question of imminence.44
2. Procedural due process concerns
Having concluded that AS 47.30.915(7)(B) is
constitutional if construed to require a level of incapacity so
substantial that the respondent is not capable of surviving
safely in freedom,45 we now address Wetherhorns procedural due
process challenges to the petition for thirty-day commitment.
Involuntary commitment implicates Alaskas constitutional
guarantees of individual liberty46 and privacy47 and therefore
entitles the respondent to due process protections.48 But in this
case, these procedural issues were not raised below and are
therefore waived unless they constitute plain error.49 We will
find plain error when there is a high likelihood that injustice
has resulted.50
Alaska Statute 47.30.730(a)(6) requires a petition for
involuntary commitment to list the prospective witnesses who will
testify in support of commitment or involuntary treatment. The
petition in this case did not list any witnesses. API concedes
that the petition failed to satisfy the statutory requirements.
Although Wetherhorn did not object to this error during the
hearing, she now argues that the failure to list witnesses
amounts to plain error.
But it is unclear what prejudice resulted from the
failure to list witnesses in this case. Here, the petition for
thirty-day commitment was signed by two API physicians and the
only witness testifying before the hearing was another API
physician. As API puts it,[t]hat a psychiatrist from API would
testify in support of a petition initiated by API could surprise
no one. We therefore conclude that the failure to list witnesses
in this case does not constitute plain error.
Wetherhorn also claims that the requirements of AS
47.30.730(a)(7) were not fulfilled. Alaska Statute
47.30.730(a)(7) requires a petition for thirty-day commitment to
list the facts and specific behavior that support the petition
for involuntary commitment. The commitment petition in this case
states: Manic state[,] homeless and no insight and non med
compliant x 3 months. Wetherhorn argues both that this statement
was inadequate to support the petition and that it constituted a
due process violation because the sentence did not afford her
meaningful notice or a meaningful opportunity to respond. Again,
because Wetherhorn did not raise this objection below, we review
her complaints under the plain error standard.
In her challenge to the sufficiency of the language on
the petition, Wetherhorn argues that the list of facts and
specific behaviors on the petition must: (1) be sufficient,
without supplementation, to entitle the petitioner to the
granting of the petition as a matter of law, and (2) to at least
summarize all of the evidence the state intends to put on in its
case in chief. But Wetherhorns proposed requirements go far
beyond what Alaska statutes require. Alaska Statute
47.30.730(a)(7) merely requires that the petition allege facts
and specific behavior supporting the conclusion that the
respondent meets the standards for commitment and does not
articulate the standard by which the sufficiency of the facts and
behavior listed is to be judged. And because whether a person is
actually committed depends on the hearing, not on the petition
standing alone,51 there is no reason to require that the petition
summarize all the evidence or be sufficient in itself to entitle
the petitioner to a grant of the petition as a matter of law.
Wetherhorns second argument is that the factual
allegations listed on the petition were insufficient to afford
notice as required by due process. As a general principle, due
process requires that the notice of a hearing must be appropriate
to the occasion and reasonably calculated to inform the person to
whom it is directed of the nature of the proceedings.52 Due
process also requires that a respondent be notified in such a
manner that respondent has a reasonable opportunity to prepare.53
Here, the petition and notice of hearing were reasonably
calculated to inform Wetherhorn of the nature and purpose of the
commitment hearing. The petition listed the facts and specific
behavior to be raised at the hearing: Wetherhorns (1) current
manic state; (2) state of homelessness; (3) lack of insight; and
(4) failure to take her prescribed medication for the last three
months. We conclude that no prejudice resulted because this
information was sufficient to inform Wetherhorn of the purpose of
the hearing, the statutory scheme and evidentiary standard to be
applied, and the kind of facts to be adduced at the hearing. It
was sufficiently detailed to allow her to prepare for the
hearing.
3. Evidentiary challenges to the petition for thirty-
day commitment
Finally, Wetherhorn contends that the evidence
presented at the hearing was insufficient to establish that she
met the standards for commitment under the clear and convincing
standard required by AS 47.30.735(c). But the thirty-day period
for which Wetherhorn was committed has long since passed, and the
question is thus moot. A claim is moot if it is no longer a
present, live controversy, and the party bringing the action
would not be entitled to relief, even if it prevails.54 We will,
however, consider a question otherwise moot if it falls within
the public interest exception to the mootness doctrine. The
three factors in determining whether the public interest
exception applies are: (1) whether the disputed issues are
capable of repetition, (2) whether the mootness doctrine, if
applied, may cause review of the issues to be repeatedly
circumvented, and (3) whether the issues presented are so
important to the public interest as to justify overriding the
mootness doctrine.55
In this case, Wetherhorn was committed based on a
specific set of facts that amounted to a finding that she was
gravely disabled. For example, her beliefs that the owner of the
local grocery store was going to transport her to the Popes
funeral and that she had bought a church indicated that she
lacked insight. She was diagnosed with bipolar disorder, the
most recent episode of which was manic. She had also struck
people at the hospital and was alternately confused and agitated
and had trouble sleeping. At her hearing, Wetherhorn told the
master that she wanted to stay at the hospital until I get well,
until Im stabler than I am now. These facts are all specific to
Wetherhorns condition immediately before and at the time of her
hearing. If it were to become necessary to seek Wetherhorns
commitment again, the hearing would be based on a different set
of facts specific to different circumstances. It is unclear how
two different hearings based on different facts and circumstances
could be compared, and thus the factual questions are not capable
of repetition. Because the issue here is not capable of
repetition, the public interest exception to the mootness
doctrine does not apply, and we refrain from considering this
issue.
B. The
Petit
ion
for
Admin
istra
tion
of
Psych
otrop
ic
Medic
ation
Wetherhorn raises two challenges specific to the
petition for the administration of psychotropic medication. Both
of these challenges are affected by our decision in Myers v.
Alaska Psychiatric Institute,56 which had not yet been decided at
the time of Wetherhorns hearing.
1. The failure to submit a visitors report
Alaska Statute 47.30.839(d) provides that when a
petition for the involuntary administration of medication is
filed, the court must direct OPA 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. Here, the superior
court appointed OPA, as required, but no visitors report was
presented during the hearing and there was no reason given for
the failure to present it. API concedes that an obvious mistake
was made with regard to the statutorily-required court visitor
report and agrees that the requirement of a visitors report is
mandatory. API nevertheless attempts to explain that the lack of
a visitors report was an inevitable and regrettable consequence
of the timing of events, because in Wetherhorns case the hearing
was held on the same day that the petition was filed and OPA was
appointed as visitor. API insists that [t]his schedule permitted
no time for the court visitor to fulfill its statutory
obligation.
But this was a petition for the involuntary
administration of psychotropic medication in a non-emergency
situation. Unlike involuntary commitment petitions,57 there is no
statutory requirement that a hearing be held on a petition for
the involuntary administration of psychotropic drugs within
seventy-two hours of a respondents initial detention. The
expedited process required for involuntary commitment proceedings
is aimed at mitigating the infringement of the respondents
liberty rights that begins the moment the respondent is detained
involuntarily. In contrast, so long as no drugs have been
administered, the rights to liberty and privacy implicated by the
right to refuse psychotropic medications58 remain intact.
Therefore, in the absence of an emergency, there is no reason why
the statutory protections should be neglected in the interests of
speed. As API itself concedes, a hearing on a medication
petition should be continued rather than proceed without a
visitors report.
Furthermore, the court visitors report is no mere
technical requirement. As we explained in Myers, psychotropic
medications are highly intrusive medications59 and have been
equated with the intrusiveness of electroconvulsive therapy and
psychosurgery.60 Alaska requires a two-step process before
psychotropic drugs may be administered involuntarily in a non-
crisis situation: the State must first petition for the
respondents commitment to a treatment facility,61 and then
petition the court to approve the medication it proposes to
administer.62 The second step requires that the State prove by
clear and convincing evidence that: (1) the committed patient is
currently unable to give or withhold informed consent;63 and (2)
the patient never previously made a statement while competent
that reliably expressed a desire to refuse future treatment with
psychotropic medication.64 In order that the court may make an
informed decision concerning these two issues, the court visitor
is appointed to assist the court in investigating the issue of
whether the patient has the capacity to give or withhold informed
consent by evaluating the patients responses to a capacity
assessment instrument administered at the request of the visitor65
and to document 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.66 The
visitors report is therefore essential to the courts mandatory
duty to determine whether the patient is presently competent to
provide informed consent67 or, if the patient is determined not to
be presently competent, to decide whether the patient was
competent to provide informed consent at the time of previously
expressed wishes to refuse psychotropic medication.68 The
prejudice to the respondent whose case is decided without the
visitors report is clear. Because the visitors report is an
essential component of the statutory scheme, the failure to
prepare and present the report before the hearing in Wetherhorns
case is an instance of plain error.
2. Evidentiary challenges to the petition for the
involuntary administration of psychotropic
medication
Wetherhorn additionally argues that the evidence
presented with regard to the petition for the involuntary
administration of psychotropic medication was insufficient to
meet the clear and convincing standard. As an initial matter,
the issue is again moot with regard to Wetherhorn because the
facts given in support of the need for medication are specific to
a certain time and place as was the case of the petition for
thirty-day commitment. Nevertheless, in light of our decision in
Myers, the court must in non-emergency cases make specific
findings: (1) that the respondent is incapable of giving or
withholding informed consent and has not made a previous
statement while competent expressing a choice; (2) that the
proposed treatment is in the respondents best interest; and (3)
that no less intrusive alternative is available.69
C. Remaining Procedural Challenges
The master addressed the petition for thirty-day
commitment and the petition for the administration of
psychotropic medication in the same hearing. We now turn to
Wetherhorns challenges to the procedures followed in that
hearing.
1. Failure to swear in and qualify the witness as an
expert
Dr. Jan Kiele was the sole witness to testify at the
hearing on the two petitions. At the beginning of the hearing,
Master Duggan stated that Dr. Kiele has previously been sworn, so
just a reminder that he is still under oath. And also, hes been
qualified as an expert in the field of psychiatry. Although
Wetherhorn did not object to this method of reminding Dr. Kiele
that he remained under oath at the hearing, Wetherhorn now argues
that the failure to require Dr. Kiele to give an oath before each
case and to qualify him as an expert in her particular case
constituted plain error.
Alaska Evidence Rule 603 requires every witness to
declare that he or she will testify truthfully. The intent of
the rule is expressed in its requirement that a witness be sworn
in a manner calculated to awaken the witness conscience and
impress the witness mind with the duty to [testify truthfully].70
This purpose was satisfied by the masters reminder to Dr. Kiele
that he had been previously sworn and remained under oath.
Furthermore, Wetherhorn makes no argument or showing that
injustice resulted from the failure to swear in Dr. Kiele.
Because the intent of the rule was satisfied and because no
injustice was shown to have resulted, we conclude that the
failure to swear in Dr. Kiele in this case does not constitute
plain error.
Alaska Evidence Rule 702(a) requires that a witness be
qualified as an expert before proceeding to provide expert
opinion testimony.71 Wetherhorn argues that the failure to
qualify Dr. Kiele during her hearing constitutes error because no
record was produced from which the trial or appellate courts
could determine that his qualifications were proper. But
Wetherhorn does not argue that a psychiatrist working for API
would not be qualified as an expert in psychiatry or that a
psychiatrist already qualified as an expert in another case would
fail to be similarly qualified in her case. Dr. Kiele also made
no attempt to hide his limited knowledge of Wetherhorns case.
Because it is unclear what injustice resulted from the failure to
qualify the API psychiatrist, we conclude that it did not
constitute plain error.
2. Ineffective assistance of counsel
Wetherhorn additionally contends that she was deprived
of her right to counsel during the hearing because her counsel
failed to deploy a number of strategies that may have changed the
outcome of the hearing. She raises this claim for the first time
on appeal. The right to counsel provided for in AS 47.30.725(d)
necessarily includes both the right to effective counsel and the
right to challenge court orders based on a claim of ineffective
assistance of counsel. But because such a claim cannot be
effectively reviewed for the first time on appeal, we decline to
address the merits of the claim in this case.
Alaska Statute 47.30.725(d) provides: [t]he respondent
has the right to be represented by an attorney, to present
evidence, and to cross-examine witnesses who testify against the
respondent at the hearing. Alaska Statute 47.30.700(a) provides
that an attorney shall be appointed for the respondent within
forty-eight hours of the initial investigation. Because, as we
have already noted, a respondents fundamental rights to liberty
and to privacy are infringed upon by involuntary commitment and
involuntary administration of psychotropic medication
proceedings, the right to counsel in civil proceedings is
guaranteed by the due process clause of the Alaska Constitution.72
As we noted in V.F. v. State, whenever the right to counsel is
constitutionally guaranteed in a particular proceeding, the
effective assistance of counsel is also constitutionally
required.73 And the right to challenge a court order based on a
claim of ineffective assistance of counsel derives necessarily
from the right to the effective assistance of counsel.
But as has been previously discussed in the criminal
context, it is difficult for an appellate court to review a claim
of ineffective assistance of counsel unless a record has been
developed that includes findings of facts and conclusions of law
regarding the claim.74 Therefore, in Barry v. State, the court of
appeals require[d] that the question of ineffective assistance of
counsel be argued first to the trial judge either in a motion for
a new trial or an application for post-conviction relief.75 In
this case, we cannot review a claim for ineffective assistance of
counsel without an explanation in the record for counsels
actions; otherwise we become engaged in the perilous process of
second-guessing.76 Because in this case no record has been
developed, we do not review the issues. We therefore require
respondents to establish a record concerning counsels challenged
acts or omissions by applying to the trial court to seek a new
commitment and medication hearing by a motion for relief under
Alaska Civil Rule 60(b) or by a Civil Rule 86 habeas corpus
petition.77
V. CONCLUSION
We conclude that the definition of gravely disabled in
AS 47.30.915(7)(B) is constitutional if construed to require a
level of incapacity so substantial that the respondent is
incapable of surviving safely in freedom. We also conclude that
the failure to provide a visitors report during the hearing on a
petition for the administration of psychotropic medication as
required by AS 47.30.839(d) is an instance of plain error.
Because we need not determine whether the issues raised by the
facts on record, now moot, meet the gravely disabled standard of
AS 47.30.915(7)(B) as construed, and because we conclude that
Wetherhorns other challenges to the petition for thirty-day
commitment and to the conduct of counsel and the swearing in and
qualification of the witness are without merit, we VACATE the
superior courts order granting that petition without need for
remand.
In the Supreme Court of the State of Alaska
Roslyn Wetherhorn, )
) Supreme Court No. S-11939
Appellant, )
v. ) Order
) Petition for Rehearing
Alaska Psychiatric Institute, )
)
Appellee. ) Date of
Order: 4/13/2007
)
Trial Court Case # 3AN-05-00459 PR
Before: Fabe, Chief Justice, and Matthews, Eastaugh,
Bryner, and Carpeneti, Justices
On consideration of the Petition for Rehearing filed on
1/22/2007, and the Partial Non-Opposition to Petition for
Rehearing filed on 2/9/2007,
It is Ordered:
1. The Petition for Rehearing is Granted.
2. Opinion No. 6091, issued on 1/12/2007, is Withdrawn.
3. Opinion No. 6116 is issued on this date in its place.
The introductory passage that begins at the top of page 2
has been modified and now reads as follows:
We conclude that the commitment statute is
constitutional if construed to require a
level of incapacity so substantial that the
respondent cannot survive safely in freedom.
But the masters action in granting a petition
for the administration of psychotropic
medication before a visitors report had been
prepared or provided constitutes plain error.
Because we need not determine whether the
issues raised by the facts on record, now
moot, meet the gravely disabled standard as
construed, and because the other related
challenges to the commitment order are either
improperly preserved or without merit, we
vacate without reversing the order granting
the petition for thirty-day commitment.
The conclusion has been modified and now reads as follows:
We conclude that the definition of
gravely disabled in AS 47.30.915(7)(B) is
constitutional if construed to require a
level of incapacity so substantial that the
respondent is incapable of surviving safely
in freedom. We also conclude that the
failure to provide a visitors report during
the hearing on a petition for the
administration of psychotropic medication as
required by AS 47.30.839(d) is an instance of
plain error. Because we need not determine
whether the issues raised by the facts on
record, now moot, meet the gravely disabled
standard of AS 47.30.915(7)(B) as construed,
and because we conclude that Wetherhorns
other challenges to the petition for thirty-
day commitment and to the conduct of counsel
and the swearing in and qualification of the
witness are without merit, we VACATE the
superior courts order granting that petition
without need for remand.
Entered by direction of the court.
Clerk of the Appellate Courts
Marilyn May
cc: Supreme Court Justices
Judge Suddock
Trial Court Appeals Clerk
West Publishing
Other Publishers
Distribution:
James B. Gottstein
Law Office of James Gottstein
406 G Street, Suite 206
Anchorage AK 99501
Laura Bottger
Attorney Generals Office
1031 W. 4th Ave., Suite 200
Anchorage AK 99501
_______________________________
1 AS 47.30.705, Emergency detention for evaluation,
provides:
(a) A peace officer, a psychiatrist or
physician who is licensed to practice in this
state or employed by the federal government,
or a clinical psychologist licensed by the
state Board of Psychologist and Psychological
Associate Examiners who has probable cause to
believe that a person is gravely disabled or
is suffering from mental illness and is
likely to cause serious harm to self or
others of such immediate nature that
considerations of safety do not allow
initiation of involuntary commitment
procedures set out in AS 47.30.700, may cause
the person to be taken into custody and
delivered to the nearest evaluation facility.
A person taken into custody for emergency
evaluation may not be placed in a jail or
other correctional facility except for
protective custody purposes and only while
awaiting transportation to a treatment
facility. However, emergency protective
custody under this section may not include
placement of a minor in a jail or secure
facility. The peace officer or mental health
professional shall complete an application
for examination of the person in custody and
be interviewed by a mental health
professional at the facility.
(b) In this section, minor means an
individual who is under 18 years of age.
2 AS 47.30.710 provides:
(a) A respondent who is delivered under
AS 47.30.700 47.30.705 to an evaluation
facility for emergency examination and
treatment shall be examined and evaluated as
to mental and physical condition by a mental
health professional and by a physician within
24 hours after arrival at the facility.
(b) If the mental health professional
who performs the emergency examination has
reason to believe that the respondent is (1)
mentally ill and that condition causes the
respondent to be gravely disabled or to
present a likelihood of serious harm to self
or others, and (2) is in need of care or
treatment, the mental health professional may
hospitalize the respondent, or arrange for
hospitalization, on an emergency basis. If a
judicial order has not been obtained under AS
47.30.700, the mental health professional
shall apply for an ex parte order authorizing
hospitalization for evaluation.
3 AS 47.30.839, Court-ordered administration of
medication, states in relevant part:
(d) Upon the filing of a petition under
(b) of this section, 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:
(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.
4 Grinols v. State, 74 P.3d 889, 891 (Alaska 2003).
5 Holderness v. State Farm Fire & Cas. Co., 24 P.3d 1235,
1237 (Alaska 2001).
6 Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
7 Martin N. v. State, Dept of Health & Soc. Servs., Div.
of Family & Youth Servs., 79 P.3d 50, 53 (Alaska 2003).
8 Id.
9 Laidlaw Transit, Inc. v. Crouse ex rel. Crouse, 53 P.3d
1093, 1097 (Alaska 2002).
10 Id.
11 Humphrey v. Cady, 405 U.S. 504, 509 (1972).
12 Addington v. Texas, 441 U.S. 418, 425 (1979) (citations
omitted).
13 Rust v. State, 582 P.2d 134, 139 n.16 (Alaska 1978) (A
person who presents a danger to others is committed under the
states police power. A person who requires care and treatment is
committed through exercise of the states parens patriae power.
One who poses a danger to himself is committed under a
combination of both powers.); see also Addington, 441 U.S. at
426.
14 OConnor v. Donaldson, 422 U.S. 563, 575-76 (1975).
15 Id. at 575 & n.9; see also Cooper v. Oklahoma, 517
U.S. 348, 368 (1996).
16 Addington, 441 U.S. at 431; see also Kansas v.
Hendrides, 521 U.S. 346, 359 & 360 n.3 (1997).
17 In re LaBelle, 728 P.2d 138, 144 (Wash. 1986).
18 Id.
19 Ch. 142, 27, SLA 1984.
20 AS 47.30.655.
21 Act Relating to the Treatment of Mentally Ill Persons:
Before the Standing and Special Comm. of the M. Health, Educ. &
Soc. Servs. Standing 13th Comm., Leg. 2d Sess. HHES 84/04/24 1342
(Alaska 1984) (statement of Dr. Shapiro, Dir. of Mental Health
& Developmental Disabilities, Dept of Health & Soc. Servs.).
22 Id.
23 Act Relating to the Treatment of Mentally Ill Persons:
Before the Standing and Special Comm. of the M. Health, Educ. &
Soc. Servs. Standing 13th Comm., Leg. 2d Sess. HHES 84/04/24 1730
(Alaska 1984) (statement of Sen. Josephson) (explaining that
[t]he gut of the bill is Pages 18 and 19 gravely disabled and
likely to cause serious harm . . . changed phrasing to include
mental illness, so that a person can be committed before its too
late (i.e., before theyve hurt themselves or someone else)).
24 Act Relating to the Treatment of Mentally Ill Persons:
Before the Standing and Special Comm. of the M. Health, Educ. &
Soc. Servs. Standing 13th Comm., Leg. 2d Sess. HHES 84/04/24 1342
(Alaska 1984) (statement of Dr. Shapiro, Dir. of Mental Health &
Developmental Disabilities, Dept of Health & Soc. Servs.). Dr.
Shapiro explained that, [r]ight now . . . were sitting with a law
that allows people to walk out the door. We know the person is a
time bomb, but if they havent shown violence in less than
[thirty] days, they can [use the courts] to get out.
25 Addington, 441 U.S. at 426 (emphasis added).
26 Addington was concerned with the standard of
evidentiary proof required in civil commitment statutes and held
that it must be greater than the preponderance of evidence
standard but less than the beyond a reasonable doubt standard.
441 U.S. at 431-33. As Addington noted, [i]ncreasing the burden
of proof is one way to impress the factfinder with the importance
of the decision and thereby perhaps to reduce the chances that
inappropriate commitments will be ordered. Id. at 427.
27 OConnor, 422 U.S. at 575; see also id., 422 U.S. at 574
n.9 (Of course, even if there is no foreseeable risk of
self-injury or suicide, a person is literally dangerous to
himself if for physical or other reasons he is helpless to avoid
the hazards of freedom either through his own efforts or with the
aid of willing family members or friends.). In 1996 the Supreme
Court noted that [a]lthough we have not had the opportunity to
consider the outer limits of a States authority to civilly commit
an unwilling individual, our decision in [OConnor] makes clear
that due process requires at a minimum a showing that the person
is mentally ill and either poses a danger to himself or others or
is incapable of surviving safely in freedom. Cooper, 517 U.S. at
368 (citations omitted).
28 AS 47.30.915(7)(B).
29 422 U.S. 563 (1975).
30 AS 47.30.915(7)(B).
31 OConnor, 422 U.S. at 576.
32 LaBelle, 728 P.2d at 146.
33 AS 47.30.730(a)(2).
34 AS 47.30.730(a)(3).
35 AS 47.30.735(c); see DeNuptiis v. Unocal, 63 P.3d 272,
278 (Alaska 2003) (acknowledging that the clear and convincing
standard of proof at minimum is required in civil commitment
hearings in Alaska and citing Addington, 441 U.S. at 425).
36 Humphrey, 405 U.S. at 509.
37 OConnor, 422 U.S. at 575.
38 Addington, 441 U.S. at 426-27.
39 422 U.S. at 575.
40 See, e.g., In re Harris, 654 P.2d 109, 111 (Wash. 1982)
(citation omitted).
41 617 F.2d 173, 176 (9th Cir. 1980).
42 C.f. In re Harris, 654 P.2d 109, 112 (Wash. 1982)
(citing Humphrey, 405 U.S. at 509); In re Labelle, 728 P.2d at
144.
43 See, e.g., LaBelle, 728 P.2d at 146.
44 Id.
45 OConnor, 422 U.S. at 575.
46 Humphrey, 405 U.S. at 509.
47 Myers v. Alaska Psychiatric Inst., 138 P.3d 238, 246
(Alaska 2006) ([W]e . . . similarly hold that Alaskas statutory
provisions permitting nonconsensual treatment with psychotropic
medications implicate fundamental liberty and privacy
interests.).
48 Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (Freedom
from bodily restraint has always been at the core of the liberty
protected by the Due Process Clause from arbitrary governmental
action. It is clear that commitment for any purpose constitutes a
significant deprivation of liberty that requires due process
protection.) (citations and internal quotation omitted).
49 Martinez v. Cape Fox Corp., 113 P.3d 1226, 1229 (Alaska
2005).
50 Id.
51 AS 47.30.735(c).
52 Huntley v. N.Carolina State Bd. of Ed., 493 F.2d 1016,
1019 (4th Cir. 1974) (citing Mullane v. Cent. Hanover Bank &
Trust Co., 339 U.S. 306, 313 (1950)).
53 French v. Blackburn, 428 F. Supp. 1351, 1357 (M.D.N.C.
1977), affd, 443 U.S. 901 (1979); see also In re Richard E., 785
N.Y.S.2d 580 (N.Y. App. Div. 2004).
54 Fairbanks Fire Fighters Assn, Local 1324 v. City of
Fairbanks, 48 P.3d 1165, 1167 (Alaska 2002).
55 Akpik v. State, Office of Mgmt. & Budget, 115 P.3d 532,
536 (Alaska 2005) (citation omitted).
56 138 P.3d at 238.
57 AS 47.30.725(b).
58 Myers, 138 P.3d at 246.
59 Id. at 242.
60 Id.
61 AS 47.30.700 .815.
62 AS 47.30.836(3); AS 47.30.839.
63 AS 47.30.836(3); AS 47.30.839(g).
64 AS 47.30.839(d)(2); AS 47.30.839(g).
65 AS 47.30.839(d)(1).
66 AS 47.30.839(d)(2).
67 AS 47.30.839(f) provides:
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.
68 AS 47.30.839(g) provides in relevant part:
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 (d)(2) of this section, the
court shall approve the facilitys proposed
use of psychotropic medication.
69 138 P.3d at 254.
70 Alaska R. Evid. 603.
71 See L.C.H. v. T.S., 28 P.3d 915, 923 (Alaska 2001).
72 Alaska Const. art. I, 7; V.F. v. State, 666 P.2d 42,
45 & n.2 (Alaska 1983) (holding that the due process clause of
the Alaska Constitution guarantees the right to effective counsel
in proceedings for the termination of parental rights).
73 666 P.2d at 45 (citations omitted).
74 See, e.g., Barry v. State, 675 P.2d 1292, 1295 (Alaska
App. 1984).
75 Id.
76 Id. (citation and quotation omitted).
77 Wetherhorn additionally argues for a standard of review
to be applied to the acts or omissions of counsel in civil cases
that differs from that used in the criminal context. See Risher
v. State, 523 P.2d 421, 424-25 (Alaska 1974). Wetherhorn also
argues for the establishment of five requirements that must be
met before counsel may be deemed competent in a civil commitment
case. Because we have determined that her claim for ineffective
assistance of counsel cannot be reviewed directly on appeal, we
do not reach these issues.
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