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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Bigley v. Alaska Psychiatric Institute (05/22/2009) sp-6374
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
| WILLIAM S. BIGLEY, | ) | |
| ) Supreme Court No. S- 13116 | ||
| Appellant, | ) | |
| ) Superior Court No. | ||
| v. | ) 3AN-08-00493 PR | |
| ) | ||
| ALASKA PSYCHIATRIC | ) | |
| INSTITUTE, | ) O P I N I O N | |
| ) | ||
| Appellee. | ) No. 6374 - May 22, 2009 | ) |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Sharon L. Gleason, Judge.
Appearances: James B. Gottstein, Law Project
for Psychiatric Rights, Inc., Anchorage, for
Appellant. Timothy M. Twomey, Assistant
Attorney General, Anchorage, and Talis J.
Colberg, Attorney General, Juneau, for
Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Carpeneti, and Winfree, Justices.
CARPENETI, Justice.
I. INTRODUCTION
A psychiatric patient committed to the Alaska
Psychiatric Institute (API) challenges the superior courts order
approving APIs petition for involuntary administration of
psychotropic drugs under AS 47.30.839. He alleges that the trial
court violated due process guarantees and that it erred in its
findings that APIs proposed treatment was in his best interests
and that no less intrusive alternative was available. Because
the patient was subsequently released without treatment, the case
is technically moot, but we decide it because it falls within the
public interest exception to the mootness doctrine. We conclude
that, because the patient did not receive adequate notice of the
nature of the proceedings and access to his medical chart, he was
denied due process. We accordingly issue declaratory relief
clarifying these due process requirements.
II. FACTS AND PROCEEDINGS
A. Facts
This case concerns a petition by API to administer
psychotropic medication to an unconsenting adult, William Bigley.
Bigleys first hospitalization at API was in 1980. He exhibited
threatening and bizarre behavior, delusions, and auditory
hallucinations; API diagnosed him with schizophreniform disorder
and treated him with anti-psychotic medications. During another
hospitalization at API in 1981, he was diagnosed with paranoid
schizophrenia.
Bigley was hospitalized dozens of times in the next two
decades in a revolving door pattern of arrest, hospitalization,
release, and relapse. In 1996 a court appointed the Office of
Public Advocacy (OPA) as Bigleys conservator to manage his
finances, and OPA became Bigleys guardian later in 2004.
Throughout the years of his mental illness, it appears that
Bigley generally denied that he had any psychiatric problems. He
has often quit taking the psychotropic medications prescribed to
him after his hospitalizations have ended. Bigley resented being
placed under guardianship and has sought to terminate the
guardianship. Doctors attribute Bigleys resistance to medication
to his delusional belief that people are attempting to poison
him. However, it is also true that the medications have
sometimes produced harmful physical side effects, ranging from
relatively minor (weight gain, sedation) to serious and
irreversible (a movement disorder known as tardive dyskinesia).1
According to a 2004 report by a court-appointed
visitor, Bigleys mental condition and living conditions had
recently taken an alarming turn for the worse. He had been
living in an apartment for four years, but his angry and
belligerent behavior escalated and he was evicted. He appeared
underweight. The visitor thought he was spinning out of control
and quite angry, and concluded that he was unable to manage his
own affairs.
By early 2007 Bigley had been in API at least sixty-
eight times.2 He had periods where his symptoms were moderate
enough that he was able to live in assisted living or other forms
of housing for short periods. There were other times when he
lived on the streets. According to doctors at API, his periods
of stability coincided with his acceptance of the medication
prescribed to him, while when he stopped taking the medications,
his delusions and disturbing behavior became more intense and he
became homeless. For a period in 2007, Bigley received
assistance with living in the community from a nonprofit mental
health services provider called CHOICES, Inc.
In 2008 Bigleys situation was highly unstable. He had
lost his most recent housing at a motel and refused another room
his guardian found for him. Bigleys guardian reported that
Bigley was not eating or drinking, could not express himself
coherently, did not seem to recognize him, and refused an offer
of money or a bus pass. The guardian said he had never seen
Bigley in such a bad state and called the police.
Meanwhile, Bigley was involved in a series of
disturbances at the First National Bank in Anchorage. Bigley
often came into the bank to withdraw funds. In recent visits he
had become disruptive, making hostile and threatening statements
to bank employees and customers. Employees became frightened, so
the bank banned him from the premises and hired a security guard
to deal with his visits. On April 25 a police officer who
responded to one of these disturbances took Bigley into custody
and requested an emergency mental health evaluation.
At API Bigley was agitated, angry, and delusional. He
refused to eat or drink, and had to be housed in locked seclusion
because his behavior intimidated other residents, some of whom
tried to retaliate physically. API records say he believed his
food and drink were poisoned, that he had God-like powers, spoke
repeatedly of natural and man-made catastrophes, and talked about
blowing things up. While the professionals who dealt with him
did not think he was dangerous, they worried his aggressive
behavior could sooner or later provoke someone he encountered
outside the hospital to assault him.
B. Proceedings
1. Commitment and related proceedings
On April 26, 2008, a magistrate issued an ex parte
order committing Bigley to psychiatric evaluation after finding
probable cause that he was mentally ill and that he was gravely
disabled or presented a likelihood of causing serious harm to
himself or others. The order also appointed the public defender
to represent Bigley.
On April 28 API petitioned for a thirty-day commitment,
and also petitioned for court approval of non-crisis
administration of psychotropic medication. On that same day, an
attorney, James Gottstein of the Law Project for Psychiatric
Rights, e-mailed API and the public defender to inform them that
he was representing Bigley with respect to what he called the
forced drugging petition. In the e-mail he stated the view that
Bigley had likely acted out as a way to get shelter at API during
cold weather. He proposed a plan under which Bigley would be
housed and fed at API.
The public defenders office represented Bigley at the
commitment hearing on April 30, 2008. Attorney Gottstein filed a
limited entry of appearance to represent Bigley regarding the
petition for court-ordered administration of medication. The
public defender objected to Gottsteins appearing on Bigleys
behalf. The master agreed that should Bigley be committed,
Gottstein could appear for Bigley during the subsequent
involuntary medication proceedings. However, until that time,
the master said she would not allow Gottstein to appear as
counsel, cautioning him that youre not co-counsel and youre not
to be sitting at the table with them or interfering with their
conduct of the case.
At the April 30 hearing, the master heard evidence and
found that Bigley was gravely disabled under AS 47.30.915(7). On
May 5 the superior court adopted the findings of fact and ordered
Bigley committed to API for mental health treatment for a period
not to exceed thirty days.
2. Proceedings on administration of psychotropic
medication
On May 7 API moved for an expedited hearing on the
medication petition, noting that under AS 47.30.839(e), a hearing
is required on the patients capacity to give or withhold informed
consent within seventy-two hours of the petition. On May 9 (a
Friday) the court notified the parties that it was going to hold
an expedited hearing on the medication petition on May 12
(Monday).
At the May 12 hearing on the medication petition,
Gottstein objected to the expedited proceedings, saying the
hearing was premature because to his knowledge Bigley had not yet
been committed. It then emerged that Gottstein had not received
notice of the courts May 5 commitment order. Gottstein also
stated that he had yet to receive Bigleys medical chart despite
earlier requests to API. He further argued that the API petition
was defective because it did not provide adequate information
about the proposal to medicate Bigley, such as the specific
drugs, dosages, side effects, and benefits. He said that he
needed this information to adequately prepare for the hearing.
Gottstein also proposed that a pretrial or settlement conference
be held for the purpose of crafting a plan that would allow for
an alternative to Bigley taking the medication. The court
decided to proceed with the hearing and allow API to present its
case, but said that it would make additional hearing time
available for Gottstein to respond if necessary.
Early in the proceedings on the medication petition,
Gottstein moved to dismiss, arguing that Bigley was competent
earlier when he refused to take medications and that a less
intrusive alternative existed of providing him support in the
community to help him to function without medications. Gottstein
also objected to the compressed schedule for the hearing, which
he said would prevent him from adequately preparing his case.
The court decided to allow API to proceed with its case, but
asked Gottstein how much additional time he needed for his
presentation and set aside additional time on May 14 for that
purpose.
a. Evidence on Bigleys capacity for informed
consent
The court-appointed visitor, Marie Ann Vassar,
testified she attempted to meet with Bigley that morning to
assess his competence and found him extremely agitated,
delusional, and unable or unwilling to cooperate in an
assessment. She said there was no evidence of an advance
directive with regard to psychotropic medication. She also said
that the guardian supported the use of such medication.
API presented the testimony of Dr. Lawrence Maile,
director of APIs forensic evaluation unit and its clinical
director. He testified that he had treated Bigley on a number of
prior occasions. He testified that Bigleys refusal to take
medication was based on the delusional belief that API was trying
to poison and kill him. Maile said that Bigley was not capable
of having a rational conversation about the medications or
understanding the proposed treatment. Bigleys counsel argued
that on prior occasions, Bigley had while competent expressed
opposition to taking medication and had ceased to take it after
being discharged from the hospital, and that the court must abide
by such statements of his preference.
The court concluded that Bigley was not now competent
and that there was no evidence of any prior occasions on which
Bigley had, while competent, stated an opposition to being
medicated in the future. Bigleys own demeanor in the courtroom
apparently influenced the judges determination that Bigley lacked
capacity. In her findings, the judge observed that Bigley was
quite agitated and maintained a running monologue throughout most
of the court proceedings.
b. Evidence relating to the best interests
determination
With respect to the determination of Bigleys best
interests, the main subjects of the evidence were (i) the
benefits that API claimed the treatment would provide and (ii)
the harms that Bigley claimed would result from administering
psychotropic medication.
i. Evidence on benefits of administering
psychotropic drugs
API proposed to treat Bigley with risperidone, an anti-
psychotic medication that API records indicate had been part of
an effective regimen in the past, and which, at the hearing, API
doctors said helped make Bigley calmer and more capable of
rational interaction so that he could function in the community.
Dr. Kahnaz Khari, a staff psychiatrist at API, testified that the
use of this kind of medication was required by the standard of
care of psychiatrists in this community. She said she believed
it was in Bigleys best interests to receive the medications.
Dr. Khari said it was likely Bigley would be injected
since he refused to take the oral form of the drug. She also
planned to administer a medication from the benzodiazepine family
to calm Bigley down until the risperidone took effect. Dr. Khari
conceded that Bigley was not likely to be compliant with
medication after release. She said that as a result API favored
giving him an injection that only has to be administered every
two weeks: At least that keeps him stable for some short period.
Dr. Khari said that she would expect that with
medication Bigley might remain delusional, but with a lower level
of intensity and a better ability to think rationally and engage
with other people. She said that in the past, she had seen
Bigley on medication and he was functioning better and living in
an assisted living facility. [H]e was able to have more rational
interaction, and he wasnt labile . . . . So I have seen him in a
higher quality of living standard that he can have with the
medication versus when hes not on medication. She testified that
without the medication, she was concerned he would not be able to
provide the care for himself, like not eating, not sleeping.
Dr. Maile, the API clinical director, also testified
that Bigley would benefit from the drugs. He testified that when
Bigley took medications, he was a very different, pleasant man
who is not threatening and not at risk to generate the harm from
others by his perpetual threats to them. Without medication, he
tends not to take care of himself. He doesnt eat, he doesnt
drink, he doesnt seek appropriate medical care.
Dr. Maile testified that when not on his medications,
Bigley tended to threaten people. For example, he said that
Bigley had recently threatened to slit Mailes throat and kill his
staff and their children. Dr. Maile expressed concern that
someone Bigley encountered on the street might react to such
threats by harming Bigley. This concern that Bigley might
provoke an assault on himself was later reinforced by testimony
from other witnesses, including one of Bigleys own witnesses.
The court-appointed visitor, Vassar, also testified
that Bigley had in the past been helped by psychotropic drugs
administered at API. She said that previously, there was a
period, around 2003, 2004, or 2005, during which Bigley complied
with the medication order as an outpatient, receiving medication
every two weeks at API while living on his own in an apartment.
She thought this period of stability had lasted a couple of
years.
APIs medical director, Dr. Raymond Hopson, gave similar
testimony. He said that when Bigley agreed to take medication,
he was able to have suitable housing. And he was happy. He was
not on the streets, and he was doing well at that time. However,
in contrast to Vassar, Dr. Hopson said this recent period of
stability under the influence of the medications had only lasted
about six months. Dr. Hopson testified that without medications,
Bigley was intermittently homeless and his dietary intake is
questionable and that this affects his overall health.
Bigleys witnesses portrayed the proposed treatment as
just the latest in a repetitious cycle in which Bigley was
committed and forcibly medicated without any real benefits. Dr.
Grace Jackson, a psychiatrist called as an expert by Bigley,
described the states plan as business as usual. And that is to
continue sort of the in and out cycle of hospitalizations,
revamping previous or new treatment plans, and then discharging,
and then sort of repeating that process over again as it might
become necessary. API records indicate that even with
medications, Bigley would remain delusional, although sometimes
calmer.
Paul Cornils, a program manager for CHOICES, a social
services nonprofit that had worked with Bigley, testified that it
was futile to medicate Bigley because he would stop taking the
medication as soon as he was released. Cornils also said Bigley
had not been helped by the medication, saying the only effect he
observed was sedation. He testified that with medication,his
delusions are as strong. His anger and aggression is still
present, he just does not express them as strongly. He is less
disturbing most of the time . . . I have not noticed much
difference except to say that his behavior is more socially
acceptable when hes on medication. Cornils testified that there
was no need for psychotropic medication and that providing Bigley
with support and assistance would facilitate his return to a more
stable, higher functioning state.
ii. Evidence on harmful effects of
psychotropic medications
The court heard evidence relating both to the perils of
psychotropic drugs generally, and the specific side effects such
drugs could have on Bigley himself.
Dr. Grace Jackson, the psychiatrist and author called
by Bigley, testified as an expert witness about the harmful
effects and lack of effectiveness of anti-psychotic drugs. Dr.
Jackson conceded that psychotropic medication is widely accepted
within the psychiatric community as an effective treatment for
schizophrenia. However, she testified that the pharmaceutical
industry had skewed and suppressed data showing the harms these
drugs caused. She testified that the life expectancies of people
taking drugs such as risperidone had shortened by as much as
twenty to twenty-five years, that the drug caused many patients
to be chemically brain injured, and contributed to an epidemic of
dementia. She disputed the idea that risperidone was safer than
the older drugs. She testified these drugs really should be
called chemical lobotomizers rather than antipsychotics because
they merely inhibit brain activity to reduce annoying behaviors.
She testified that five to twenty percent of patients on
risperidone will develop tardive dyskinesia symptoms in the first
years of use.3 She said she did not know if Bigley had tardive
dyskinesia, but that he was at high risk of it if placed on
risperidone. She also testified there was a high likelihood he
is simply just going to die in the next five years if he is
placed back on risperidone.
In sharp contrast to the API doctors, Dr. Jackson
believed that Bigleys recent decline in mental health had been
caused not by his refusal to take medications, but to the
contrary was the result of damage done by excessive medication.
Dr. Jackson concluded that continuing with anti-psychotic
medication for Bigley would be very unwise.
Bigley also introduced an affidavit from Robert
Whitaker, a journalist and author, describing evidence of the
harmful effects and lack of efficacy of psychotropic drugs. And
he introduced an affidavit from Ronald Bassman, Ph.D., an
advocate and researcher who has been treated with psychotropic
drugs for his own schizophrenia and now opposes their use.
Dr. Hopson of API disputed the assertion that treatment
with anti-psychotics increases the likelihood of chronic mental
illness. Dr. Hopson testified that Dr. Jacksons views were not
in the mainstream of clinical practice in the Anchorage area. He
said Alaska used treatment guidelines known as the Texas
Medication Algorithm Project (TMAP) used in about half the
states, which recommend anti-psychotic medications if the
symptoms of schizophrenia interfere with daily functioning. He
said it would be remiss not to treat someone like Bigley with
such medications.
API did not dispute that Bigley has experienced some
unpleasant side effects from psychotropic drugs in the past.
Records from a 1981 hospitalization, when he was being treated
with the drug Haldol, report extrapyramidal symptoms (EPS), i.e.
movement disorders.4 More recently, during a 2007
hospitalization, his medications caused nausea and vomiting. Dr.
Maile noted that Bigley had complained of some side effects from
anti-psychotic medication such as sleepiness and weight gain.
The visitor said Bigley had complained of side effects of
erectile dysfunction and sleepiness, as well as a belief that the
injections had altered the shape of his buttocks. Both Dr. Maile
and the visitor said they were not aware of Bigley having
experienced the side effect of tardive dyskenisia.5 However, the
court later found, based on grounds that are not stated, that
Bigley did in fact suffer from this condition as the result of
years of treatment with anti-psychotic medications.6
Dr. Khari testified that the drug now at issue,
risperidone, could have side effects such as sedation,
hypertension, tardive dyskinesia, EPS, and hyperprolactinemia.7
She said risperidone was a newer kind of anti-psychotic with
fewer side effects, but could have similar side effects to the
older drugs at higher doses. She testified that in Bigleys case,
the only side effects observed in the past from risperidone were
weight gain and sedation.
c. Testimony on Bigleys proposed less intrusive
alternative
Before the hearing, Bigleys counsel had filed a Motion
for Less Intrusive Alternative with the court. In it he proposed
that Bigley be allowed to come and go from API as he wishes,
including being given food, good sleeping conditions, laundry and
toiletry items as reasonably requested . . . . If placed at API
involuntarily, he proposed that Bigley be allowed out on passes
with escort. Furthermore, the proposed alternative called for
API to procure and pay for a reasonably nice apartment that is
available to Mr. Bigley should he choose to use it. Finally, he
proposed that API make sufficient staff available to be with Mr.
Bigley to enable him to be successful in the community.
(Emphasis in original.)
In support of this motion, Bigley offered affidavits
from Ronald Bassman, Ph.D., Robert Whitaker, and an affidavit and
testimony from Paul Cornils. The affidavit from Whitaker, a
journalist who writes about science and medicine, criticized the
efficacy and side effects of psychotropic drugs, and argued that
recovery rates are superior without them. The affidavit of
Ronald Bassman described research supporting the efficacy of
recovery from schizophrenia without drugs. A report submitted by
Dr. Jackson also described non-drug treatment strategies and
summarized studies supporting their efficacy.
Most directly relevant was the affidavit of Paul
Cornils of CHOICES, because Cornils has worked with Bigley and
specifically endorsed Bigleys proposed alternative, describing in
some detail a theory of how Bigley could be better treated
without psychotropic drugs. Cornils testified that his
organization could provide case management and rehabilitative
services in the community for someone in Bigleys condition. He
thought that Bigley could be supported in the community without
medication with the help of a twenty-four hours-a-day personal
care attendant, which, over time, might be reduced to less than
twenty-four hours.
Although Cornils objected to APIs use of coercion to
treat Bigley, he conceded that CHOICES lacked the funding to
provide the kind of support Bigley needed. He also testified
that CHOICES would not normally work with a patient who was
refusing to take medication against his physicians
recommendations, which could preclude CHOICES from working with
Bigley. And he testified that a psychiatrist treating Bigley
without medications would run a liability risk: [T]he
psychiatrist would ultimately be held responsible for the
behavior because he is ultimately overseeing the treatment . . .
.
APIs Dr. Hopson agreed that the services recommended by
Cornils would be valuable and that finding housing for Bigley
should be a high priority. However, he said that the approach of
treating Bigley without medication had been tried multiple times
and failed because in each instance he was evicted from the
housing due to his behavior. It had become difficult for his
guardian to place him anywhere because they know Mr. Bigley, and
they know . . . the difficulties they are going to encounter.
3. Post-hearing proceedings
On May 19, 2008, the superior court issued its findings
and order granting the petition for approval of administration of
medicine. The court found that Bigley lacked capacity to provide
or withhold informed consent, that the administration of
medication to him would be in his best interests, and that no
less intrusive alternative was available to treat his mental
illness.
Regarding Bigleys best interests, the court found that
the proposed treatment met the standard of medical care in
Alaska, and that without it Bigley is unable at the present time
to obtain any housing or mental health services outside of API
because of his current aggressive and angry behavior. The court
found that when medication had been administered in the past to
Bigley, his behavior has improved to such an extent that he has
been able to successfully reside in the community, albeit for
short periods of time. The court found that Bigley has
experienced tardive dyskinesia, but that the risk was less with
risperidone than with some other medications.
The court did not agree with Bigleys contention that
there was a less intrusive alternative:
The option that Mr. Bigley simply be
permitted to come and go from API as he
chooses is not a realistic alternative for
two reasons first, it is inconsistent with
APIs role as an acute care facility for
individuals throughout the state that are in
need of acute mental health care, and second,
the evidence is clear and convincing that Mr.
Bigley would not avail himself of this option
even if it were available to him. As such,
it is not a less intrusive treatment at all.
Furthermore, the court found that without the administration of
medication, the evidence is clear and convincing that there will
not be any improvement in Mr. Bigleys mental functioning. The
court also noted that providing support services through CHOICES
was not a viable alternative because Cornils of CHOICES testified
that his organization could not work with a patient who refused
treatment advice from a physician to receive medication.
The court approved APIs petition, limiting approval to
the specific drug risperidone in a specified dosage. However,
its order was stayed pending an appeal to this court, and during
that time Bigleys period of commitment expired and he was
released without receiving the medication.
III. STANDARD OF REVIEW
We review a trial courts factual findings for clear
error.8 Factual findings are clearly erroneous if a review of
the entire record leaves us with a definite and firm conviction
that a mistake has been made.9 We will grant especially great
deference when the trial courts factual findings require weighing
the credibility of witnesses and conflicting oral testimony.10
We review a trial courts decision to grant or deny a
continuance for abuse of discretion.11
We apply our independent judgment to the interpretation
of the Alaska Constitution and statutes, adopting the rule of law
that is most persuasive in light of precedent, reason, and
policy.12
IV. DISCUSSION
A. The Appeal Is Moot but We Decide It Under the Public
Interest Exception.
We generally refrain from deciding issues where the
facts have rendered the legal issues moot.13 This case is
technically moot because Bigley can no longer be medicated under
the challenged order and therefore cannot obtain any relief if he
prevails.14 The order permitting API to medicate Bigley was
stayed pending an appeal to this court. Bigleys period of
commitment subsequently expired and he was released without
receiving the medication. 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.15
However, a public interest exception may apply when a
potentially moot case raises a matter that is (1) of grave public
concern, (2) likely to recur, and (3) capable of evading review.16
In Myers v. Alaska Psychiatric Institute, we noted that the
involuntary administration of psychotropic medication by the
state is a highly intrusive procedure implicating fundamental
constitutional guarantees of liberty and privacy.17 In that case,
we found the public interest exception to apply in order to
clarify the requirements for protecting constitutional rights in
such proceedings.18 For similar reasons, the public interest
exception applies here. Bigley raises issues of public
importance regarding the application of the Myers standards, as
well as questions of due process and interpretation of the
underlying statutory scheme in such proceedings.
As in Myers, these issues are likely to recur.19 This
is true not only because other patients are likely to raise
similar claims in the future, but because Bigley himself, having
already been involuntarily committed and medicated dozens of
times in the past,20 is almost certain to face similar proceedings
in the future. Finally, as we noted in Myers, it is doubtful
that an appeal from a medication order could ever be completed
within the orders period of effectiveness.21 Thus, the petition in
this case, like the one in Myers, is of a kind that is likely to
evade review.22 We conclude that while technically moot, this
case raises issues that are justiciable under the public interest
exception.
B. It Was Error To Deny Bigley Adequate Notice and
Opportunity To Prepare His Case.
Bigley argues that the court violated his due process
rights, claiming he was (1) denied sufficient advance notice of
the nature of the proceedings, (2) not given adequate time to
prepare his case, and (3) denied timely access to his medical
chart ahead of the hearing. We will examine each of these claims
in turn, but first consider the structure of state laws that
govern the administration of psychotropic medication.
The state may not administer such medication to a
patient in a non-crisis situation unless the patient provides
informed consent, authorizes the administration of such
medication in an advance directive, or is determined by a court
to lack the capacity to give informed consent.23 In the latter
circumstance, the state must prove that the patient is unable to
give or withhold informed consent and prove by clear and
convincing evidence that the patient never previously made a
statement while competent that reliably expressed a desire to
refuse such treatment in the future.24 The governing statute
provides that this hearing must be held within seventy-two hours
after the filing of the petition by the state.25 Under the
standards we announced in Myers, constitutional guarantees of
liberty and privacy further require the court to find by clear
and convincing evidence that the involuntary administration of
psychotropic medication is in the best interests of the patient
and that no less intrusive alternative treatment is available.26
The right to refuse psychotropic medication is a
fundamental right protected by the Alaska Constitutions
guarantees of liberty and privacy.27 We held in Myers that such
involuntary medication cannot be ordered unless a court finds by
clear and convincing evidence that the treatment is in the best
interests of the patient.28 The Myers court provided guidance on
factors that should be considered in the best interests
determination.29 At a minimum, . . . 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. As codified in AS
47.30.837(d)(2), these items include:30
(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[.][31]
We have stated that these factors are crucial in establishing the
patients best interests,32 which means that their consideration by
the trial court is mandatory. We will here refer to these as the
Myers factors. Our opinion in Myers also identified a set of
factors derived from a ruling of the Supreme Court of Minnesota.33
They are:
(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.[34]
We called these Minnesota factors helpful and sensible,35 which
means that to the extent they differ from the Myers factors,
their consideration by Alaskan courts is favored but not
mandatory.
Alaska has adopted the U.S. Supreme Courts three-part
balancing test from Mathews v. Eldridge36 for determining the
necessary extent of due process:
First, the private interest that will be
affected by the official action; second, the
risk of an erroneous deprivation of such
interest through the procedures used, and the
probable value, if any, of additional or
substitute procedural safeguards; and
finally, the Governments interest, including
the function involved and the fiscal and
administrative burdens that the additional or
substitute procedural requirement would
entail.[37]
Applying due process principles to notice requirements, we have
held 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.38 Due process
also requires that a respondent has a reasonable opportunity to
prepare.39
With this statutory and constitutional framework in
mind, we consider each of Bigleys due process arguments.
1. Bigley had a due process right to sufficient
notice of the nature of the proceedings.
Bigley argues that he was denied due process because he
did not have sufficient notice of which drugs API proposed to
administer to him, and was not informed of the evidence API
intended to present in order to comply with standards announced
in our Myers ruling. We agree.
The petition used by API in this case merely stated its
intent to administer psychotropic medication without any other
information about the nature of the proposed treatment or its
justification.40 Such notice will generally be insufficient to
allow a respondent such as Bigley a reasonable opportunity to
prepare his case.41
With respect to this function of providing notice, the
petition here is somewhat analogous to a complaint in a civil
case or an indictment in a criminal case. In civil cases, Alaska
has a fairly lenient notice pleading standard. Alaska Rule of
Civil Procedure 8(a) requires that a complaint include (1) a
short and plain statement of the claim showing that the pleader
is entitled to relief, and (2) a demand for judgment for the
relief the pleader seeks. We have noted that [w]e have not
construed this rule to require details of evidence that a
claimant will offer to establish a claim; to the contrary, we
have emphasized that the rule is satisfied by a brief statement
that give[s] the defendant fair notice of the claim and the
grounds upon which it rests. 42 In criminal cases, [t]he
fundamental purposes of the indictment are to furnish the accused
with a description of the charge against him to enable him to
prepare his defense.43 Alaska Rule of Criminal Procedure 7(c)
provides that [t]he indictment or the information shall be a
plain, concise and definite written statement of the essential
facts constituting the offense charged.
When the state seeks the involuntary administration of
psychotropic medication in a non-crisis situation, it similarly
must provide a plain, concise, and definite written statement of
the facts underlying the petition, including the nature of and
reasons for the proposed treatment, in order that the respondent
may prepare, if he or she desires, to challenge the petition
under the Myers factors. This should include information about
the patients symptoms and diagnosis; the medication to be used;
the method of administration; the likely dosage; possible side
effects, risks and expected benefits; and the risks and benefits
of alternative treatments and nontreatment.
This conclusion is supported by the balancing test of
Mathews v. Eldridge. First, the private interest here is very
strong, given the highly intrusive and potentially harmful
effects of involuntary administration of psychotropic drugs.
Second, the risk of an erroneous deprivation of individual rights
is high, since the subject of the hearing is alleged to be
mentally incompetent and will inevitably rely heavily upon
counsel who may have imperfect knowledge concerning the case.
The value of providing such information would be high, since it
goes to the heart of the constitutional inquiry into the patients
best interests under Myers. The government too has a strong
interest at stake, namely the expeditious treatment of a person
alleged to be suffering a serious mental illness. But the
administrative burden of providing such notice should not be
unduly high, since these are all factors the state would need to
consider in reaching the decision that it is necessary to
medicate the patient in the first place.
In this particular case it is not clear Bigley was
actually prejudiced by the lack of notice. He had been through
similar proceedings with API in the past and knew enough about
the proposed treatment to mount a vigorous challenge to the
petition. Nevertheless, it is possible that his presentation of
his case under the Myers best interests factors could have been
compromised. Accordingly, we decline to render an opinion here
about whether API met its burden of showing by clear and
convincing evidence that the proposed treatment was in Bigleys
best interests. Nor will we remand for additional proceedings,
since this case is technically moot. API no longer seeks to
medicate Bigley under the challenged order, so there would be no
remedy if Bigley could show on remand that the proposed treatment
was not in his best interests under the Myers factors.44
2. The amount of preparation time did not violate
Bigleys due process rights, but the court had
discretion to wait longer than seventy-two hours
to hold the hearing.
Bigley argues that an expedited hearing gave him
inadequate time to prepare his case. In particular, he says the
schedule did not allow time to subpoena Dr. William Worrall, a
former API physician he needed to testify. He also says he
lacked sufficient time to prepare his case with respect to the
proposed less intrusive alternative. Although we agree with
Bigley that the trial court had discretion to postpone the
hearing, we conclude nevertheless that the timing of the hearing
did not constitute a due process violation because there is no
indication the scheduling of the hearing prejudiced the
preparation of Bigleys case.
API argues that Bigley had ample notice because he was
aware there was a petition for court-ordered medication by the
date of the commitment hearing, April 30, and received notice of
that proceeding by April 29. API also notes that the medication
hearing spanned three days, May 12, 14, and 15, and that the
judge made accommodations to give Bigley extra time to present
his case at his request.
We have held that granting or denying a continuance is
within the discretion of the trial judge, and we will consider
the particular facts and circumstances of each individual case to
determine whether the denial was so unreasonable or so
prejudicial as to amount to an abuse of discretion.45 Denial of a
motion for continuance constitutes an abuse of discretion when a
party has been deprived of a substantial right or seriously
prejudiced.46 It is the duty of the trial judge, in the absence
of some weighty reason to the contrary, to insist upon cases
being heard and determined with as great promptness as the
exigencies of the case will permit.47
In this case there is no indication that the schedule
of these proceedings prejudiced Bigley. APIs medication and
commitment petitions were both filed on April 28. Bigleys
attorney Gottstein appeared at Bigleys commitment hearing on
April 30, 2008 and filed a limited entry of appearance so as to
represent Bigley regarding the petition for court-ordered
administration of medication. On May 5 the court ordered Bigley
committed. On May 7 API moved for an expedited hearing on the
medication petition. On May 9 (Friday) the court gave notice to
the parties that it was going to hold an expedited hearing on the
medication petition on May 12 (Monday). At the May 12 hearing on
the medication petition, Gottstein objected to the expedited
schedule, saying the hearing was premature because to his
knowledge Bigley had not yet been committed. It then emerged
that Gottstein had not received notice of the courts May 5
commitment order.
We are not persuaded by Bigleys argument that he was
prejudiced by not having more time to investigate instances in
which API funded additional services in the community of the kind
that Bigley sought under his less intrusive alternative. This
was not a disputed issue: APIs witnesses stated that they
believed it was valuable to provide supportive services to help
Bigley live in the community, and that they hoped such services
could again be provided in the future. However, they also
clearly believed that successful provision of any such services
first required Bigley to be treated with psychotropic
medications, and that Bigley needed a combination of medication
and these supportive services. The judges findings echoed this.
Viewing the issue in the due process framework of
Mathews v. Eldridge,48 the court needed to balance the potential
infringement of Bigleys rights against the probative value of
additional time and the impact of delay in relation to the
governments interests.49 The trial judge stated that she was
fully cognizant of the need to give due consideration to the
Myers requirements and observed that she took these types of
proceedings quite seriously. While the amount of time needed to
prepare for such a hearing may vary with circumstances, the
government will usually have a strong interest in a speedy
decision in order to render treatment to a mentally incapacitated
person. In this case, API had a limited window of time to
administer medication during Bigleys thirty-day commitment, and
in committing Bigley, the court had found that Bigley was gravely
disabled. Given the circumstances and the lack of any indication
that Bigley was prejudiced by delay, we do not find that the
amount of preparation time violated his due process rights.
Bigley also argues that the court refused to delay the
hearing because it erroneously interpreted the governing statute
as requiring that the hearing be held within seventy-two hours of
the filing of the medication petition by API. We agree with
Bigleys interpretation of the statute on this point.
Alaska Statute 47.30.839(e) provides that the court
must hold a hearing within seventy-two hours of the filing of the
medication petition in order to determine the patients capacity
to give or withhold informed consent . . . and the patients
capacity to give or withhold informed consent at the time of
previously expressed wishes regarding medication . . . . Bigley
argues that the statutory language only explicitly requires a
hearing within seventy-two hours on the issues of informed
consent and capacity. The statute is silent on the timing of the
constitutionally-mandated inquiry under Myers into the patients
best interests and the availability of a less intrusive
alternative. The trial court held that all these matters must be
determined within seventy-two hours of the petition.
A literal reading of the statute does not require that
these inquiries into best interests and less intrusive
alternatives be conducted within seventy-two hours of the
petition. This is unsurprising because those requirements were
imposed by the Myers ruling after the statute was enacted and
were very likely not contemplated by the legislature at all.
Determining whether the treatment is in the patients best
interests and whether less intrusive treatment alternatives are
available requires a broader inquiry than merely determining
capacity and informed consent. It seems likely there would be
circumstances in which a seventy-two hour time limit would not
give sufficient time for the respondent to prepare for such a
hearing and thus violate due process.
The canon of constitutional avoidance recommends that
when the validity of an act of the [legislature] is drawn in
question, and even if a serious doubt of constitutionality is
raised, it is a cardinal principle . . . [to] first ascertain
whether a construction of the statute is fairly possible by which
the question may be avoided.50 Because AS 47.30.839(e) is
ambiguous, and because an interpretation that imposes a rigid
seventy-two hour limit may in some circumstances violate due
process, we hold that the statute should be interpreted as
offering the court the discretion to conduct a separate
proceeding on the constitutional questions required by Myers that
does not occur within seventy-two hours of the medication
petition.
3. Bigley had a due process right to access his
medical chart before the hearing.
Bigley was represented by the Public Defender Agency
during the involuntary commitment proceeding, and by attorney
Gottstein during the proceedings on the medication petition. The
public defender and Bigleys guardian contested this bifurcation
of Bigleys representation. The magistrate at the April 30, 2008
commitment hearing ruled that Gottstein could represent Bigley in
the later medication petition proceeding but could not serve as
his counsel until the commitment proceedings were completed and
Bigley was committed. According to Gottstein, as a result of
this decision, he didnt get access to Bigleys medical chart until
after the hearing started, and then only to a portion of it.
Attorney Gottstein did not receive Bigleys medical
chart before the May 12 hearing, even though he requested it and
the court had earlier approved his representation of Bigley on
this matter. The chart should have been provided earlier.
Gottstein needed access to his medical history to prepare for
proceedings regarding his best interests and alternative
treatments under the Myers standards. That the court did not
intend to proceed on the medication petition until Bigley was
committed does not lessen Bigleys need for sufficient time to
prepare for that proceeding. Providing Bigley with the medical
chart on the day of the hearing was not sufficient to satisfy due
process.
Again, this is a matter that is technically moot in
this case, since Bigley was released without the medication order
ever being carried out. However, we hold that a patient must
have access to his medical and psychiatric records once a
petition to involuntarily medicate the patient has been filed.
Furthermore, there is no need to wait until the commitment
proceeding is completed to provide this information to an
attorney who will be representing the patient in a subsequent
medication proceeding.
C. The Court Did Not Err in Finding by Clear and
Convincing Evidence that There Was No Less Intrusive
Alternative to the Ordered Treatment.
Bigley argues that because there was a less intrusive
alternative to involuntary medication, it was unconstitutional
to approve the medication petition. We conclude that the trial
court did not err in finding by clear and convincing evidence
that the alternative proposed by Bigley was not a feasible
alternative for achieving the states compelling objectives.
In Myers we held that [w]hen no emergency exists, . . .
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.51 This finding must be supported by clear and
convincing evidence.52 The inquiry into whether there is a less
intrusive alternative is a mixed question of fact and law. It
involves, in part, a balancing of legal rights: In cases
involving the right to privacy, the precise degree to which the
challenged legislation must actually further a compelling state
interest and represent the least restrictive alternative is
determined, at least in part, by the relative weight of the
competing rights and interests.53 In cases such as this, we must
balance the fundamental liberty and privacy interests of the
patient against the compelling state interest under its parens
patriae authority to protect the person and property of an
individual who lack[s] legal age or capacity. 54
While this inquiry involves a balancing of legal rights
and interests, it is also a fact-intensive inquiry. Although the
state cannot intrude on a fundamental right where there is a less
intrusive alternative, the alternative must actually be
available, meaning that it is feasible and would actually satisfy
the compelling state interests that justify the proposed state
action.55 Assessing the feasibility and likely effectiveness of a
proposed alternative is in large part an evidence-based factual
inquiry by the trial court.
As described earlier, Bigley proposed as a less
intrusive alternative a plan under which he wouldbe allowed to
come and go from API as he wishes, including being given food,
good sleeping conditions, laundry and toiletry items as
reasonably requested . . . . If placed at API involuntarily, he
proposed that he be allowed out on passes with escort.
Furthermore, the proposed alternative called for API to procure
and pay for a reasonably nice apartment that is available to Mr.
Bigley should he choose it. Finally, Bigley called for API to
make sufficient staff available to be with Mr. Bigley to enable
him to be successful in the community. (Emphasis in original.)
API did not dispute that Bigleys proposed alternative
was less intrusive than APIs proposal, which the judge termed
highly intrusive. We agree that Bigleys proposed alternative was
less intrusive because it did not require Bigley to take drugs
that he opposes taking. However, the court was required to
evaluate whether Bigleys proposed alternative would be feasible
and effective in promoting the same compelling state interests
that justified APIs proposed treatment.
When the state petitions for involuntary administration
of psychotropic medication, the relevant compelling interest is
the states parens patriae power, the inherent power and authority
of the state to protect the person and property of an individual
who lack[s] legal age or capacity. 56 The trial court fairly
described the state as pursuing the goals of improvement in Mr.
Bigleys mental functioning and helping him to function in the
community. As to the states proposed administration of
psychotropic medication, the superior court found that
When medication has been administered in the
past to Mr. Bigley, his behavior has improved
to such an extent that he has been able to
successfully reside in the community, albeit
for short periods of time. Without the
administration of medication at this time,
the evidence is clear and convincing that
there will not be any improvement in Mr.
Bigleys mental functioning.
The record supported this conclusion.
Regarding the comparative effectiveness of the
medication approach and Bigleys proposed less intrusive
alternative, Bigleys witnesses testified that psychotropic
medications were often ineffective, and that non-drug treatments
would be more effective. On the other hand, API doctors and the
visitor testified that in the past the drugs had calmed Bigley
and made him more rational and better able to function in the
community. They asserted that Bigley needed the medication in
order to be able to attend to his basic survival needs for
housing, nutrition, and medical care.
It is true that the record provides ample reason to
doubt that APIs proposed treatment will provide permanent or long-
term gains in Bigleys well-being. He has already been a patient
at API at least sixty-eight times, and has repeatedly stopped
taking medication and deteriorated after release. As the visitor
once noted, Bigleys course has been a revolving door of
hospitalizations, treatment, release, and further
hospitalization. The superior court concedes that in the past,
the administration of psychotropic medication has only yielded
improvements in Bigleys quality of life for short periods of
time.
Although this is a rather limited endorsement of APIs
treatment plan, the court concluded that the administration of
the medication offered the best prospect for helping Bigley to
cooperate with further treatment and obtain further assistance in
gaining housing and other services. The court did not believe
Bigleys proposed alternative would achieve these benefits. It
noted that without the medication, Bigley will be unable . . . to
obtain . . . mental health services outside of API because of his
current aggressive and angry behavior. Therefore, in order for
Mr. Bigley to be most likely to achieve a less restrictive
alternative than his current placement at API, the involuntary
administration of risperadone is needed. For example, Bigley
argues his mental condition would improve if he were offered
housing at API, but the judge concluded that Mr. Bigley would not
avail himself of this option even if it were available to him.
As such, it is not a less intrusive treatment at all. The court
noted that due to his aggressive and angry behavior, Bigley has
been evicted from other housing options he was provided in the
past. Furthermore, the court concluded that without
administration of the medication, Bigley was not likely to
achieve a less restrictive alternative than his current placement
at API.
The court also concluded, after hearing the evidence on
both sides, that Bigleys proposed alternative faced practical
obstacles to being implemented at all. Bigley seeks for API to
allow him to use its hospital as his place of residence, and
provide him with intensive twenty-four hour a day assistance to
help him cope with his daily needs and keep him out of trouble.
The court found this proposal to conflict with APIs mission as
the states only acute care psychiatric hospital. The court heard
testimony from APIs medical director that it was incapable of
housing patients like Bigley on a long-term basis without
compromising its primary mission.
Bigleys proposal also relied on the notion that API or
some other service provider such as CHOICES would offer Bigley
intensive case management and assistance in the community,
including twenty-four hour-a-day care to keep him out of trouble.
However, the court noted that Paul Cornils of CHOICES was not
sure his organization would be able to assist Bigley even if it
had funding to do so, as long as Bigley were not following
treatment advice to receive medication. API physicians testified
that not prescribing the medication would violate the standard of
care in Alaska. Thus, as Cornils acknowledged, it could be
difficult to find any physician or social service providers
willing to treat Bigley without first medicating him.
Implementation of Bigleys proposal would evidently require
physicians and service providers to care for Bigley in ways that
violate their own professional standards, to say nothing of the
risks to Bigley if the alternative proved ineffective as the
court feared.
The superior court found that Bigleys proposed
alternative would not likely provide Bigley with the needed
therapeutic benefits, and that APIs proposed use of medication
offered a better chance of improving Bigleys functioning and
helping him to address his basic needs. These findings were not
clearly erroneous. Similarly we do not find the trial court to
have clearly erred in finding the proposed less intrusive
alternative posed serious risks to Bigleys well being, and that
there were major practical obstacles to its implementation.
In weighing the evidence for and against the
availability of a less intrusive alternative, the trial court is
required to find by clear and convincing evidence that no less
intrusive alternative is available. We have described clear and
convincing evidence as evidence that is greater than a
preponderance, but less than proof beyond a reasonable doubt. . .
. [C]lear and convincing evidence means and is that amount of
evidence which produces in the trier of fact a firm belief or
conviction about the existence of a fact to be proved. 57 We
conclude that the evidence heard by the trial court was strong
enough to meet this standard. We therefore find the court did not
err in concluding that there was no less intrusive alternative
available than APIs proposed treatment.
D. We Are Unable To Determine Whether There Was Clear and
Convincing Evidence that Administration of Psychotropic
Medication Was in Bigleys Best Interests.
The right to refuse psychotropic medication is a
fundamental right protected by the Alaska Constitutions
guarantees of liberty and privacy.58 We held in Myers that such
involuntary medication cannot be ordered unless a court finds by
clear and convincing evidence that the treatment is in the best
interests of the patient.59 Bigley asserts that the trial court
erred in making this finding. We have determined in this case
that Bigley did not receive adequate notice of the nature of APIs
treatment proposal and was denied access to information needed to
prepare his case under the Myers best interests factors.60 While
it is possible that these due process violations constituted
harmless error, it is also possible that they deprived Bigley of
the opportunity to properly develop his case on best interests.
Because API no longer seeks to carry out the treatment
proposed in the disputed petition, the question of best interests
is moot and no purpose would be served by remanding for new
proceedings on it. Bigley argues that a remedy is still
available because we could order the lower court to provide his
proposed less intrusive alternative. However, the best interests
and least intrusive alternative inquiries under Myers are parts
of a constitutional test of the validity of APIs proposed
treatment. If that Myers inquiry had lead us to conclude that
APIs proposed treatment was constitutionally barred, that would
not give rise to a legal obligation on APIs part to provide
Bigleys less intrusive alternative. API could attempt to offer
some other form of treatment that was not constitutionally
invalid, or could simply release Bigley without treatment (which
is what happened in this case). Accordingly, we decline to
review the sufficiency of the evidence supporting administration
of psychotropic medication in this case.
V. CONCLUSIONS
Because we address this appeal under the public
interest exception to the mootness doctrine, we issue only
declaratory relief. We hold that in proceedings for involuntary
administration of psychotropic medication in non-crisis
situations, due process requires that the petition provide
sufficient information about the proposed treatment plan for the
respondent to prepare to challenge the petition under the Myers
best interests factors, should he or she wish to do so. The
respondent must also be given access to his or her psychiatric
and medical records held by the petitioner in advance of the
hearing. We also hold that AS 47.30.839(e) should be interpreted
to give courts discretion to wait more than seventy-two hours to
hold hearings on the best interests and less intrusive
alternative inquiries mandated by our Myers ruling if the
respondent requests more time. Finally, we hold that in this
case the superior court did not err in rejecting Bigleys proposed
less intrusive alternative to involuntary medication.
_______________________________
1 Tardive dyskinesia involves slow, rhythmical,
repetitive, involuntary movements of the mouth, lips, and tongue;
it is permanent, and its symptoms cannot currently be treated.
Myers v. Alaska Psychiatric Inst., 138 P.3d 238, 241-42 (Alaska
2006) (quoting Steele v. Hamilton County Cmty. Mental Health Bd.,
736 N.E.2d 10, 17 (Ohio 2000) (quoting Winick, The Right to
Refuse Mental Health Treatment 72-73 (1997))).
2 Although API records describe a February 2007
admission as Bigleys sixty-eighth admission, an API psychiatrist
testified at the May 2008 hearing at issue in this case that
Bigley had been admitted to API seventy-seven times.
3 See supra note 1.
4 These temporary muscular side effects disappear when
the drug is terminated. See Myers, 138 P.3d at 241.
5 See supra note 1.
6 The record contains a transcript of a 2007 commitment
proceeding involving Bigley in which Dr. William Worral, a former
API physician, testified that Bigley had tardive dyskinesia from
years of treatment with other psychotropic drugs, but that the
risk of this complication from risperidone was less than with
those other drugs.
7 Hyperprolactinemia means [e]levated levels of prolactin
in the blood, which is a normal physiological reaction during
lactation, but pathological otherwise . . . . Stedmans Medical
Dictionary 745 (25th ed. 1990).
8 Vezey v. Green, 171 P.3d 1125, 1128 (Alaska 2007).
9 Id.
10 Id. at 1128-29.
11 Klockenbrink v. State, 472 P.2d 958, 964 (Alaska 1970).
12 Vezey, 171 P.3d at 1129.
13 Myers v. Alaska Psychiatric Inst., 138 P.3d 238, 244
(Alaska 2006) (citing Hayes v. Charney, 693 P.2d 831, 834 (Alaska
1985) and Doe v. State, 487 P.2d 47, 53 (Alaska 1971)).
14 See infra p. 37 regarding Bigleys claim that he is
entitled to a remedy of having this court order provision of his
proposed less intrusive alternative.
15 Fairbanks Fire Fighters Assn v. City of Fairbanks, 48
P.3d 1165, 1167 (Alaska 2002).
16 Myers, 138 P.3d at 244 (quoting Hayes, 693 P.2d at
834).
17 Id. at 242, 250.
18 Id. at 245.
19 See id. at 244-45.
20 See supra note 2.
21 Myers v. Alaska Psychiatric Inst., 138 P.3d 238, 244
(Alaska 2006) .
22 See id. at 244-45.
23 AS 47.30.836.
24 AS 47.30.839(d)-(g).
25 AS 47.30.839(e).
26 Myers, 138 P.3d at 249-50.
27 Id. at 248.
28 Id. at 239, 252-53.
29 Id. at 252.
30 Id.
31 Id.
32 Id.
33 Id. (citing Price v. Sheppard, 239 N.W.2d 905, 913
(Minn. 1976)).
34 Id.
35 Id.
36 424 U.S. 319, 335 (1976).
37 Whitesides v. State, Dept of Pub. Safety, Div. of Motor
Vehicles, 20 P.3d 1130, 1135 (Alaska 2001) (citing Mathews, 424
U.S. at 335).
38 Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371,
380 (Alaska 2007) (quoting Huntley v. N. Carolina State Bd. of
Educ., 493 F.2d 1016, 1019 (4th Cir. 1974)).
39 Id. (quoting French v. Blackburn, 428 F. Supp. 1351,
1357 (M.D.N.C. 1977)).
40 The standardized petition form used by API has no
explanation of the basis or goals of the petition, other than the
text beside two check boxes that were marked. One checked part
states, There have been, or it appears that there will be,
repeated crisis situations requiring the immediate use of
medication to preserve the life of, or prevent significant
physical harm to, the patient or another person. The facility
wishes to use psychotropic medication in future crisis
situations. The text beside the other selected check box states,
Petitioner has reason to believe the patient is incapable of
giving or withholding informed consent. The facility wishes to
use psychotropic medication in a noncrisis situation.
41 See Wetherhorn, 156 P.3d at 380.
42 Valdez Fisheries Dev. Assn v. Alyeska Pipeline Serv.
Co.,
45 P.3d 657, 673 (Alaska 2002) (internal citations omitted).
43 Thomas v. State, 522 P.2d 528, 530 (Alaska 1974).
44 Regarding Bigleys argument that he is entitled to the
remedy of ordering provision of the less intrusive alternative,
see infra p. 37.
45 See A.A. v. State, Dept of Family & Youth Servs., 982
P.2d 256, 259 (Alaska 1999).
46 Siggelkow v. Siggelkow, 643 P.2d 985, 986-87 (Alaska
1982) (quoting Barrett v. Gagnon, 516 P.2d 1202, 1203 (Alaska
1973)).
47 Id. at 987 (quoting Kalmus v. Kalmus, 230 P.2d 57, 63
(Cal. App. 1951)).
48 424 U.S. 319, 335 (1976).
49 Whitesides v. State, Dept of Pub. Safety, Div. of Motor
Vehicles, 20 P.3d 1130, 1135 (Alaska 2001) (citing Mathews, 424
U.S. at 335).
50 Pub. Citizen v. U.S. Dept of Justice, 491 U.S. 440, 465-
66 (1989) (quoting Crowell v. Benson, 285 U.S. 22, 62 (1932)).
51 Myers v. Alaska Psychiatric Inst., 138 P.3d 238, 248
(Alaska 2006).
52 Id. at 254.
53 State v. Planned Parenthood of Alaska, 171 P.3d 577,
581 (Alaska 2007).
54 Myers, 138 P.3d at 249 (quoting Pub. Defender Agency v.
Superior Court, Third Judicial Dist., 534 P.2d 947, 949 (Alaska
1975).
55 See Treacy v. Municipality of Anchorage, 91 P.3d 252,
267 (Alaska 2004) (proposed alternative to youth curfew that
would limit the restrictions to those youths who had violated the
law in the past would not meet the ordinances stated purpose of
protecting juveniles from becoming crime victims themselves); see
also Planned Parenthood, 171 P.3d at 579, 585 (parental
notification is an alternative to parental consent requirement
for minors seeking abortion because it will serve equally well to
promote the Parental Consent Acts goals of involving parents in
their minor childrens abortion decisions).
56 Myers, 138 P.3d at 249 (quoting Pub. Defender Agency,
534 P.2d at 949).
57 Buster v. Gale, 866 P.2d 837, 844 (Alaska 1994)
(quoting Castellano v. Bitkower, 346 N.W.2d 249, 253 (Neb.
1984)).
58 Myers, 138 P.3d at 246, 248, 251-52.
59 Id. at 239, 249-50, 252.
60 See supra pp. 22-25.
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