In re Necessity for Hospitalization of Paige M.

          Appeal from the Superior Court No. 1SI-16-00074 PR of the State of Alaska, First Judicial District, Sitka, Leonard Devaney, Judge pro tem.

          Michael Jude Pate and Rachel E. Cella, Assistant Public Defenders, and Quinlan Steiner, Public Defender, Anchorage, for Paige M.

          Anna Jay, Assistant Attorney General, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for State of Alaska and Department of Health and Social Services.

          Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and Carney, Justices.

          OPINION

          BOLGER, Chief Justice.

         I. INTRODUCTION

         A psychologist at a mental health clinic petitioned to have a patient involuntarily hospitalized. The superior court held a hearing on the petition at which only the psychologist gave substantive testimony. The court granted the petition, and the patient was hospitalized. The patient now appeals the court's denial of her motion to vacate the involuntary hospitalization order. Because the superior court failed to conduct a screening investigation that met statutory requirements, and because this failure was not harmless error, we reverse the superior court's denial of the patient's motion to vacate.

         II. FACTS AND PROCEEDINGS

         In November 2016 a psychologist at Neurobehavioral Consultants, LLC filed a "Petition for Order Authorizing Hospitalization" of Paige M., ^[1] an individual the clinic had been treating for approximately one year.^[2] The psychologist indicated on the petition form that she had interviewed Paige one week prior. The psychologist also indicated that she believed Paige was mentally ill and "gravely disabled or likely to cause serious harm to []herself or others" as a result of her mental illness.^[3] The psychologist explained that "[t]he risk(s) of self-neglect and self-harm are discussed in detail" in clinic notes she had attached to the petition and alleged that "[m]ost recently, [Paige] admitted needing 'safety checks' by S[itka] P[olice] D[epartment], due to medical and suicidal concerns, then hung a note on her door, refusing to answer the door for [the police]."

         The Sitka superior court held a hearing on the petition that evening. The only people in attendance were the psychologist and a representative of Sitka Counseling and Prevention Services (SCPS), which arranges for transportation and coordination with hospitals after a hospitalization petition is granted. The court confirmed that the SCPS representative had no additional information related to the petition and conducted a voir dire examination of the psychologist, who testified to Paige's behavior over the last month. The court observed that although it was "clear that [Paige] has many mental health diagnoses," the court "wasn't getting the information [it] felt like [it] needed" to make a finding necessary to grant the petition.^[4] The court accordingly requested "a little bit more information about whether... in [the psychologist's] opinion [Paige was] likely to cause serious harm to herself right now."

         The psychologist replied that there were multiple reasons for believing Paige was likely to cause serious harm to herself; one was Paige's "very recent lack of compliance in her own treatment plan and self-care," which the psychologist stated was particularly significant in light of Paige's ailments, including her propensity to suddenly lose consciousness. The psychologist added that Paige's conduct four days prior, when she arrived at the clinic and then abruptly left, was especially concerning "knowing that she's been suicidal, that she's been actively entertaining the thought of suicide, [and] that she has a history of doing this with several different means available to her." The court questioned the psychologist whether Paige would have persisted in this "state of mind" if the psychologist had seen her over the weekend, but the psychologist was unable to answer the question. The court also asked if Paige had a legal guardian who could check in on her, but the psychologist said that she did not and that she was also "estranged from her nuclear family" and "[v]ery isolated." Ultimately the court asked the psychologist: "Based on your education, training, and experience, . . . [and] given all these warning signs and the decompensation that you're seeing, do you believe that [Paige is] likely to cause serious harm to herself?" When the psychologist replied in the affirmative, the court stated that it would grant the order.

         That evening the court issued an order authorizing Paige's hospitalization under AS 47.30.700. The court found that there was probable cause to believe that Paige was mentally ill, that she was likely to cause serious harm to herself, and that she was gravely disabled.^[5] The court also indicated that Paige had been interviewed by the psychologist "in regard to the petition" one week earlier. The same evening Sitka police removed Paige from her home and placed her in a jail cell overnight. The following day she was transported from Sitka to the Alaska Psychiatric Institute in Anchorage, where she was hospitalized from November 2 to November 7.^[6]

         On November 30 Paige filed a motion to vacate the order authorizing her hospitalization. She argued that the superior court had violated AS 47.30.700 by failing to interview her after the petition was filed, that her due process rights had been violated, and that the evidence presented to the court could not support the findings needed to order involuntary hospitalization. After two hearings in April and June 2017, the court issued an order denying Paige's motion to vacate in July 2017. In rejecting Paige's arguments, the court acknowledged AS 47.30.700's screening investigation requirement but asserted that petitions filed by mental health professionals "are usually complete and contain the essence of the screening investigation." The court concluded that neither AS 47.30.700 nor due process principles had been violated, and that testimony from the psychologist provided sufficient evidence to support the court's probable cause finding. Paige moved for reconsideration and for an opportunity to supplement the record; this motion was also denied. Paige appeals the denial of both her motion to vacate and her motion to supplement the record.

III. DISCUSSION

         Paige's central arguments for reversal on appeal are: (1) that the superior court violated AS 47.30.700 and (2) that the court erred by concluding there was probable cause to order temporary hospitalization.^[7] In the alternative Paige argues that the case should be remanded with instructions that the trial court permit her to supplement the record. We reverse the superior court's denial of Paige's motion to vacate and thus do not address Paige's alternative argument. And because we reverse on statutory grounds, we also do not address her probable cause arguments.

         Paige argues that the trial court violated AS 47.30.700 by not ensuring that a full screening investigation was conducted before it issued the order for her involuntary hospitalization. We agree. Alaska law provides two avenues for initiating involuntary hospitalization for a mental health evaluation - one for emergency situations and one for non-emergency circumstances. The emergency detention statute, AS 47.30.705, authorizes a peace officer or a mental health professional granted authority by the statute to "cause [a respondent] to be taken into custody" without first petitioning a court. But the person who initiates this emergency procedure must have "probable cause to believe that [the respondent] 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."^[8] In this case Paige was not in custody when the petition for her involuntary hospitalization was filed, so the emergency detention statute did not apply.

         Alaska Statute 47.30.700 provides the second, non-emergency, avenue to initiate involuntary hospitalization for a mental health evaluation. It allows any adult to petition for involuntary hospitalization:

Upon petition of any adult, a judge shall immediately conduct a screening investigation or direct a local mental health professional... to conduct a screening investigation of the person alleged to be mentally ill and, as a result of that condition, alleged to be gravely disabled or to present a likelihood of serious harm to self or others. Within 48 hours after the completion of the screening investigation, a judge may issue an ex parte order orally or in writing, stating that there is probable cause to believe the respondent is mentally ill and that condition causes the respondent to be gravely disabled or to present a likelihood of serious harm to self or others.^[9]

         The statute identifies three key events that must occur before an individual may be involuntarily hospitalized. First an adult must petition a superior court for the respondent's involuntary hospitalization. Second a judge or mental health professional must conduct a screening investigation to evaluate the allegations in the petition. Third the court must find probable cause that the respondent is mentally ill and that this mental illness causes the respondent to be gravely disabled or to present a likelihood of serious harm to self or others. Only then may a judge issue an ex parte order for the respondent's involuntary hospitalization.

         Applying AS 47.30.700, the non-emergency statute, to this case, the court conducted an inadequate screening investigation in violation of that statute when, absent a finding that a post-petition interview was not reasonably possible, it did not require Paige to be interviewed as part of the investigation. Because this was not harmless error, we reverse.

         A. The Screening Investigation Statute Required A Post-Petition Interview With Paige If Reasonably Possible.

         We first interpreted the "screening investigation" language of AS 47.30.700 in In re Hospitalization of Heather R.^[10] In that case a patient appealed her hospitalization order, arguing that the court had violated AS 47.30.700 by failing to conduct a complete screening investigation before issuing the order.^[11] The court's screening investigation had included neither an interview with the patient nor any attempt to ensure an interview was conducted.^[12] Relying on the language of AS 47.30.700 and AS 47.30.915, we held that "a screening investigation should omit an interview with the respondent only if such an interview would not be reasonably possible" and vacated the order ...