In re Necessity for 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 ...