In the Matter of the Necessity for the Hospitalization of LUCY G.
Appeal
from the Superior Court No. 1JU-17-0013 8 PR of the State of
Alaska, First Judicial District, Juneau, Louis J. Menendez,
Judge.
Josie
W. Garton, Assistant Public Defender, Callie Patton Kim,
Assistant Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for Lucy G. Ruth Botstein, Senior
Assistant Attorney General, Anchorage, and Jahna Lindemuth,
Attorney General, Juneau, for State of Alaska.
Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and
Carney, Justices.
OPINION
WINFREE, JUSTICE.
I.
INTRODUCTION
This is
a case of first impression regarding an order for
administration of electroconvulsive therapy (ECT) to a
catatonic, non-consenting patient. At the superior court
hearing, the parties agreed that constitutional standards
established in Myers v. Alaska Psychiatric Institute
for ordering involuntary, non-emergency administration of
psychotropic medication also apply to involuntary ECT. The
patient now argues that there should be heightened standards
for ordering involuntary ECT and that, in any event, the
superior court's Myers analysis was legally
deficient. We hold that the superior court did not plainly
err by applying the existing Myers constitutional
standards to authorize involuntary ECT to the non-consenting
patient. We also hold that the superior court made sufficient
findings related to each relevant, contested mandatory
Myers factor. In our independent judgment, these
findings support the court's involuntary ECT order. We
affirm the superior court's decision.
II.
FACTS AND PROCEEDINGS
A.
Underlying Facts
In
March 2017 police officers found Lucy G.[1] in an Anchorage
parking lot, wet and shivering. She was taken to a local
hospital, where she initially exhibited "agitated,
self-harming, and disoriented" behaviors requiring
sedation for her and the staffs safety. Lucy, who was calm
but unresponsive by the end of the day, was diagnosed as
catatonic. Hospital staff also noted her prior schizophrenia
diagnosis and psychotropic medication prescriptions, as well
as hospitalization the prior month. After a petition by
hospital staff, the superior court authorized Lucy's
hospitalization for an involuntary commitment
evaluation.[2]
Lucy
was transported to a Juneau hospital for evaluation. The
hospital's medical director for behavioral health, a
Juneau psychiatrist, diagnosed Lucy with catatonia. In April
the psychiatrist petitioned the superior court to:
involuntarily commit Lucy for 30 days;[3] order involuntary
administration of psychotropic medication;[4] and order
involuntary ECT.[5] The psychiatrist's prognosis for
Lucy's catatonia with psychotropic medication was only
"[f]air," but her prognosis with ECT was
"[e]xcellent."
B.
Hearing Testimony Regarding Lucy
The
superior court held a contested hearing a few days
later.[6] The court heard testimony from the
petitioning Juneau psychiatrist and a Fairbanks psychiatrist
who would supervise Lucy's treatment at the only facility
then providing ECT in Alaska. Both psychiatrists were
qualified by the court as experts in mental illness diagnosis
and ECT treatment. The court-appointed visitor[7] and a public
defender investigator who had worked on her prior commitment
cases also testified.
The
Juneau psychiatrist testified that Lucy had been unresponsive
to people or tactile stimuli since her hospital admission and
that she was unable to tend to her most basic needs. The
psychiatrist stated that Lucy was at risk of bed sores,
pneumonia, and blood clots due to immobility; infection from
urine retention; and complications from intravenous-therapy
fluids and a potential feeding tube. The psychiatrist said
that despite increasing dosages of psychotropic medication,
there had been no "significant change." The
psychiatrist explained that improvements from psychotropic
medication usually occur within the first week: "[I]f
you don't see an improvement within those first several
days, you're not likely to see much of anything after
that." The psychiatrist noted that, compared to
Lucy's prior hospitalizations, this hospitalization
constituted Lucy's longest documented unresponsiveness
and the time between hospitalizations had been decreasing.
The
Juneau psychiatrist testified to an 80% to 90% chance of
improving Lucy's catatonia with ECT. The psychiatrist
discussed ECT's common side effects, including headache,
jaw pain, muscle aches, and dental issues. The psychiatrist
also explained that, although some people complain of memory
loss, formal neurological comparisons before and after ECT
show patient "memory is actually better." The
psychiatrist believed that ECT was Lucy's least
restrictive treatment alternative because her catatonia was
worsening every day, she was not responding to psychotropic
medication, and there was a risk that without treatment the
catatonia would become irreversible. The psychiatrist stated
that if Lucy had been living in any other state, her doctors
would have considered ECT to treat her catatonia six months
earlier.
The
Fairbanks psychiatrist had not yet examined Lucy but had
consulted with the Juneau psychiatrist. The Fairbanks
psychiatrist testified that she would conduct an independent
evaluation prior to administering ECT. She agreed that,
because Lucy was "essentially paralyzed from her
psychiatric illness," the standard of care called for
immediate ECT treatment, the "gold standard treatment
for catatonia." The Fairbanks psychiatrist estimated
that significant results from ECT could be seen within nine
treatments and that sustained benefits could require
continued outpatient treatment.
Like
the Juneau psychiatrist, the Fairbanks psychiatrist expected
that a patient's memory would improve after ECT. But the
Fairbanks psychiatrist noted ECT's other potential side
effects, including the "approximately 1 in 10, 000"
chance of death, as well as risks related to the required
anesthesia: stroke, heart attack, and blood clots. Like the
Juneau psychiatrist, the Fairbanks psychiatrist ultimately
believed that involuntary ECT was the least restrictive
treatment available to ensure Lucy's safety and was in
her best interests. The Fairbanks psychiatrist repeatedly
testified that if at any point during the commitment Lucy
regained capacity, the psychiatrist would defer to Lucy
whether to continue treatment.
The
public defender investigator testified that Lucy's only
next of kin, her significant other, had passed away in July
2016. The court visitor testified that "the court [was]
at a disadvantage because they haven't been able to
see" Lucy's "dramatic" condition. The
visitor stated that Lucy is "gravely disabled, and in
need of help. And it doesn't seem like the courses of
treatment that have been utilized to date have been effective
for her or sustained over any period of time."
C.
Hearing Testimony Regarding ECT In Alaska
Hearing
testimony discussed the basics of ECT treatment. ECT is
performed under general anesthesia. A patient receives
"the lowest amount of energy required to have an
effective seizure" through electrodes placed on the
head. Doctors monitor the patient's vital signs and brain
waves during the procedure, and a "bite block" is
held in place in the patient's mouth.
The
Fairbanks psychiatrist testified that she had received
specialized training prior to opening Fairbanks Memorial
Hospital's ECT treatment center in August 2016. She said
that ECT is not an experimental catatonia
treatment[8] and that Alaska has "had it in the
past, but... it's been several years since anyone in the
state had a running program." She said that the ECT
center was inspected by a national accrediting body, was
deemed to have "zero deficiencies," and was
"identified ... as a best practice [institute] for other
facilities around the country that have ECT programs."
She noted that by the time of Lucy's hearing, the ECT
center had provided approximately 200 ECT treatments to 11
voluntary patients. Lucy would be the ECT center's first
involuntary patient.
D.
Superior Court's Findings And Conclusions; This
Appeal
The
superior court found by clear and convincing evidence that
Lucy suffered from a mental illness, was gravely disabled,
and lacked capacity to give informed consent. The court also
found by clear and convincing evidence that involuntary ECT
was in Lucy's best interests and that there was "no
other reasonable alternative in conjunction with the
administration of psychotropic drugs." The court
considered the psychiatrists' testimony, citing ECT's
"80 to 90 percent response rate" and side effects
including "muscular pain, clenched jaw, [and] dental
issues." The court found "[t]here may be some
issues in terms of, again, one's heart; but there's
no evidence of death. And what's been given to me in
terms of ECT is the fact that the negatives are far, far, far
less than the positives." The court ordered the 30-day
commitment and granted the petitions for involuntary
psychotropic medication and ECT.
Lucy
appeals only the ECT order, arguing that the superior court
erred by determining that ECT was in her best interests and
by determining that ECT was the least intrusive alternative
treatment available to her.
III.
DISCUSSION
A.
Applying The Existing Myers Best Interests
Factors-As The Parties Agreed - Was Not Plain Error.
In
Myers v. Alaska Psychiatric Institute we held
that-in non-emergency situations - a court may not authorize
administration of psychotropic medications to a
non-consenting patient without first determining that the
medication is in the patient's best interests and that no
less intrusive alternative treatment is
available.[9] The parties agreed at the commitment
hearing that the superior court should apply the
Myers factors to determine whether to order
involuntary ECT for Lucy. But in her appellate briefing Lucy
advocates - for the first time - that an additional layer of
protection for court-ordered ECT is merited on the ground
that ECT is a greater intrusion than psychotropic medication
to a patient's autonomy. Because Lucy did not argue for
this heightened standard in the superior court, we review her
claim for plain error.[10]
In
Myers we held that a patient's "right to
refuse to take psychotropic drugs is
fundamental."[11] We now likewise hold that a
patient's right to refuse ECT is fundamental. We have
held that "[w]hen a law places substantial burdens on
the exercise of a fundamental right, we require the state to
'articulate a compelling' [state] interest' and
to demonstrate 'the absence of a less restrictive means
to advance [that] interest.' "[12] Because
administering involuntary ECT burdens a patient's
fundamental rights, the state must: (1) articulate a
compelling interest in administering involuntary ECT; and (2)
demonstrate that involuntary ECT administration is the least
restrictive means to advance that compelling interest.
We
"readily agree[d]" in Myers that "the
state's parens patriae obligation does give it a
compelling interest in administering psychotropic medication
to unwilling mental patients in some
situations."[13] But we could not categorically answer
when less restrictive means exist.[14] We instead stated that
before such treatment could be ordered, an independent
judicial determination of the patient's best interests
must be made to ensure that the proposed treatment actually
is the least restrictive means of protecting the
patient.[15]
Although
we held that considering a patient's best interests is
required as part of the superior court's determination
whether involuntary medication is the least restrictive means
to advance the state's compelling interest, we
subsequently have separated these inquiries.[16] We now
clarify that for a particular treatment-involuntary
medication or ECT - to be the least restrictive means to
advance the state's compelling interest, the superior
court must find it both to be in the patient's best
interests and the least intrusive treatment option available.
In
Bigley v. Alaska Psychiatric Institute we explained that
the Myers inquiry balances "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]... capacity."'
"[17] This constitutional balancing test is a
"fact-intensive inquiry" because, "[a]lthough
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."[18] We recently reiterated in
Kiva O. v. State, Department of Health & Social
Services, Office of Children's Services that
"[a]ssessing the feasibility and likely effectiveness of
a proposed alternative is in large part an evidence-based
factual inquiry by the trial court."[19]
Lucy
argues that in addition to - or despite - the Myers
fact-intensive, no-less-intrusive-alternative inquiry, we
should hold as a matter of law that ECT is more intrusive
than psychotropic medication, and, therefore, that
involuntary ECT can be administered as a last resort only
when psychotropic medication will not suffice. We find
Lucy's argument flawed on two bases: First, her reliance
on Matter of C.D.M., [20] a case predating
Myers by 25 years, to create this heightened
standard is misplaced; and second, her request that we rule
ECT categorically is more intrusive than psychotropic
medication is misdirected - that is a question for the
legislature.
In
C.D.M. we held that a court could not order
involuntary sterilization unless the patient's incapacity
was permanent and the procedure "absolutely
necessary."[21] Lucy asserts, based on this holding,
that a court can order involuntary ECT only as a last resort
and not to "circumvent a patient's refusal to take
psychotropic medication when competent." But we premised
our decision in C.D.M. on the fact that
"[s]terilization necessarily results in the permanent
termination of the intensely personal right to
procreate."[22] ECT, unlike sterilization, is not
designed to permanently abridge a fundamental right.
Court-ordered mental health treatment is statutorily limited
to 30 days; extending beyond that time requires a new court
hearing and constitutional inquiry, [23] and such treatment may
not be provided to any person who has regained capacity to
consent to or decline treatment.[24] Because ECT is not
designed to permanently abridge a fundamental right, we
decline to apply our C.D.M. holding in this context.
We also
reject Lucy's policy argument that we should hold as a
matter of law that ECT is more intrusive than psychotropic
medications. This substantive policy decision rests squarely
within the legislature's province.[25] We recognized
in Myers that many states "have equated the
intrusiveness of psychotropic medication with the
intrusiveness of [ECT] ."[26] And nothing in our current
statutory scheme evinces a clearly contrary legislative
intent.
Although
Title 47 of the Alaska Statutes differentiates between
treatment methods in crisis situations - authorizing
only psychotropic medication in emergencies[27] - there is no
indicated preference for psychotropic medication in
non-crisis situations. And under AS 47.30.772,
evaluation and treatment facilities "may administer
medication or other treatment to an involuntarily
committed patient" consistent with other statutory
provisions. (Emphasis added.) Within the "other
statutory provisions" referenced, a court may order ECT
for a "patient who lacks substantial capacity" to
decide whether to "accept or refuse
[ECT]."[28] These provisions plainly allow for
court-ordered, non-emergency involuntary ECT. We therefore
leave to the legislature whether a treatment hierarchy
generally should exist.
Having
dismissed Lucy's two arguments for a heightened standard,
we are unpersuaded that the superior court made an
"obvious mistake" by applying only the protective
Myers analysis - which the parties agreed applied -
to this case.
B.
The Superior Court Did Not Err By Determining That
Involuntary ECT Was The Least Restrictive Means To Advance
The State's Compelling Interest In Protecting
Lucy.
As part
of Lucy's overall challenge to the superior court's
finding that involuntary ECT was the least restrictive means
to advance the state's compelling interest in protecting
her, she challenges the sufficiency of the court's best
interests and least intrusive alternative findings under
Myers. She first faults the court's nearly
illegible, cursory written findings. But because the court
also provided extensive oral findings and conclusions of law
at the commitment hearing, we analyze its oral
findings.[29] Lucy also challenges the court's
ultimate best interests determination, arguing that the court
misweighed the factors.
We
first explain why the Myers best interests and least
intrusive alternative determinations are mixed questions of
fact and law and that we will review these determinations by
exercising our independent judgment. We then clarify our
previous decisions and discuss why express findings on each
relevant, contested Myers best interests factor are
needed to ensure a patient's due process rights are
protected and to facilitate appellate review. We finally
evaluate the superior court's findings regarding both
best interests and least intrusive alternatives to determine
whether the court's factual findings are clearly
erroneous and whether, as a matter of law, the court erred in
its conclusions.
1.
We exercise our independent judgment when reviewing the
superior court's best interests and least intrusive
alternative findings as part of its overall least restrictive
means determination.
Our
fundamental holding in Myers was that, in light of
the Alaska Constitution's liberty and privacy guarantees,
the existing statutory framework for nonemergency,
involuntary treatment with psychotropic medications could be
constitutional only if it were overlaid with certain patient
protections.[30] Specifically, we held that (1) before
such treatment could be ordered, an independent judicial
determination must be made about (a) whether such treatment
was in the patient's best interests, and (b) whether any
less intrusive alternatives exist;[31] and (2) the appropriate
standard of proof for these determinations is clear and
convincing evidence.[32]
We
emphasized in Myers that whether a patient's
best interests are served by involuntary treatment ultimately
"presents a constitutional question," the answer to
which "must take the form of a legal judgment"
hinging "on constitutional principles aimed at
protecting individual choice" rather than on medical
expertise.[33] In Bigley, although we did not
reach the moot best interests question, we stated that
"[t]he inquiry into whether there is a less intrusive
alternative itself is a mixed question of fact and law"
and that the ultimate determination must be founded on an
"evidence-based factual inquiry" into the
feasibility and efficacy of any proposed alternative
treatment.[34] In Kiva O. we stated that we
review each inquiry as a mixed question of fact and
law.[35]
But we
have done little to explore the nature of mixed questions of
fact and law in non-jury cases when the difference between
underlying factual findings and ultimate legal determinations
is not clearly defined, [36] and we therefore are left with the
question how to actualize review of these determinations.
Sometimes we say broadly that we review the superior
court's factual findings for clear error and legal
conclusions de novo.[37] Sometimes we say that we review the
superior court's factual findings for clear error but
review de novo the application of those facts to the relevant
articulated law.[38] But these statements do nothing more
than state the obvious when there is an easily determinable
difference between the underlying factual findings and the
ultimate legal determination. For example, if there is
significantly defined law, a party might assert on appeal
that the superior court: (1) made erroneous underlying
factual findings; (2) applied the wrong law or wrongly
characterized the correct law; or (3) wrongly applied the
correct law to the underlying factual findings. The first
alleged error seems one of fact, reviewed for clear error,
while the latter two alleged errors seem legal, reviewed de
novo. This is not out of the ordinary from typical appellate
review of factual and legal determinations.[39]
As the
United States Supreme Court has recognized, "[m]ixed
questions are not all alike."[40] A truly mixed question of
fact and law appears when controlling law is not so
definitely defined, but rather involves abstract legal
concepts "more akin to a general guide for the exercise
of considered judgment," so that the determination
"generally def[ies] ready categorization as either law
or fact."[41] "[T]hese rules generally acquire
meaning, over time, through judicial application to the
circumstances of particular cases" and "may gain
meaning through repeated judicial
interpretation."[42] In this context the Supreme Court
applies a functional analysis, focusing primarily on which
court is in the best position to decide the
issue.[43] The Supreme Court has said:
A finding of fact in some cases is inseparable from the
principles through which it was deduced. At some point, the
reasoning by which a fact is "found" crosses the
line between application of those ordinary principles of
logic and common experience which are ordinarily entrusted to
the finder of fact into the realm of a legal rule upon which
the reviewing court must exercise its own independent
judgment. Where the line is drawn varies according to the
nature of the substantive law at issue. Regarding certain
largely factual questions in some areas of the law, the
stakes - in terms of impact on future cases and future
conduct - are too great to entrust them finally to the
judgment of the trier of fact.[44]
As
noted above, some constitutional questions involve
"stakes [that]... are too great" for deferential
review, thereby requiring more than the judgment of a single
judge.[45] In these contexts the Supreme Court has
stated that it "is not bound by the conclusions of lower
courts, but will reexamine the evidentiary basis on which
those conclusions are founded."[46]
For
example, both we and the Supreme Court examine de novo the
mixed questions of law and fact presented by certain criminal
probable cause and reasonable suspicion
determinations.[47] The "principal components" of
these determinations are "the events which occurred
leading up to the stop or search, and then the decision
whether these historical facts . . . amount to reasonable
suspicion or to probable cause."[48] The second
part of this analysis - whether the facts amount to
reasonable suspicion or to probable cause - "is a mixed
question of law and fact."[49] The Supreme Court has
stated that independent appellate review is appropriate for
this analysis because "the legal rules for probable
cause and reasonable suspicion acquire content only through
application. Independent review is therefore necessary if
appellate courts are to maintain control of, and to clarify,
the legal principles."[50] The Supreme Court reasoned
that "de novo review tends to unify precedent and will
come closer to providing... a defined' set of rules.'
"[51]
For
similar reasons, this exacting de novo review standard
applies in the present context, particularly in light of our
precedent regarding involuntary commitment and medication
declaring "Alaska's constitutional guarantee of
individual liberty to be more protective" than its
federal counterpart.[52] We therefore clarify that we will review
de novo the superior court's decisions and use our
independent judgment to determine whether, based on
underlying factual findings made by the superior court, there
was clear and convincing evidence that involuntary ECT was in
Lucy's best interests and was the least intrusive
available treatment.[53] But we will review the underlying
factual findings involved in these inquiries for clear error.
2. The
superior court properly considered and made findings about
the Myers-based best interests factors.
We held
in Myers that superior courts "should
consider" five statutorily derived factors to determine
whether involuntary psychotropic medication is in the
"best interests of a patient."[54] We said that
"[considering these factors will be crucial in
establishing the ...