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State Forced Vaccinations: Myers v. Alaska Psychiatric Institute (06/30/2006) sp-6021, 138 P3d 238

Myers v. Alaska Psychiatric Institute (06/30/2006) sp-6021, 138 P3d 238

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

FAITH J. MYERS,	)
	) Supreme Court No. S- 11021
Appellant,	)
	) Superior Court No.
v.	) 3AN-03-00277 PR
	)
ALASKA PSYCHIATRIC	) O P I N I O N
INSTITUTE,	)
	) No. 6021- June 30, 2006
Appellee.	)
	)

Appeal from the Superior Court of the State

of Alaska, Third Judicial District,

Anchorage, Morgan Christen, Judge.

Appearances: James B. Gottstein, Law Project

for Psychiatric Rights, Inc., Anchorage, for

Appellant. Michael G. Hotchkin, Assistant

Attorney General, Anchorage, and Gregg D.

Renkes, Attorney General, Juneau, for

Appellee.

Before: Bryner, Chief Justice, Matthews,

Eastaugh, Fabe, and Carpeneti, Justices.

BRYNER, Chief Justice.

I. INTRODUCTION

Faith Myers, after being involuntarily committed to the

Alaska Psychiatric Institute, appealed a superior court order

approving nonconsensual administration of psychotropic drugs by

the institute. She argues that the statutes relied on by the

court in approving the medication violate the Alaska

Constitutions guarantees of privacy and liberty. We agree. In

keeping with most state courts that have addressed the issue, we

hold that, in the absence of emergency, a court may not authorize

the state to administer psychotropic drugs to a non-consenting

mental patient unless the court determines that the medication is

in the best interests of the patient and that no less intrusive

alternative treatment is available.

II. FACTS AND PROCEEDINGS

Faith Myers has suffered with mental illness for over

twenty years. Her symptoms have included paranoia, dizziness,

and vivid hallucinations. She has been hospitalized on a number

of occasions and, at times, a regimen of psychotropic medication

has seemed to improve her condition.

In 2001 Myers weaned herself off of psychotropic

medication, believing that the drugs actually worsened her

condition. She has described herself from this time forward as

an advocate for the mentally ill.

In February 2003, as a result of concerns expressed by

Myerss daughter and neighbors, Myers was involuntarily committed

to the Alaska Psychiatric Institute (API). Once admitted, Myers

refused to discuss treatment options with institute doctors. API

then filed a petition with the superior court requesting

authorization to medicate Myers without her consent.

Myers responded by challenging the constitutionality of

the statutory scheme that authorizes facilities to administer

psychotropic drugs without first securing a patients consent.

She argued that Alaskas constitutional rights to liberty and

privacy guarantee her the right to be free from unwanted mind-

altering chemicals. She asserted that the state can abridge this

right only when necessary to advance a compelling state interest.

In her case, Myers believed that API had not come close to making

this requisite showing and had also failed to show that

involuntary medication was a [least] restrictive means of

advancing any state interest.

Myers also challenged the [statutory] limitation on a

courts authority to modify or restrict a treatment plan. The

statute authorizing court-ordered administration of psychotropic

medication provides that once a court determines that [a] patient

is not competent to provide informed consent, the court shall

approve the . . . proposed use of psychotropic[s].1 On its face,

this provision does not seem to allow the court to consider

whether the proposed treatment plan would actually be in the

patients best interest, leaving that decision completely to the

treating facilitys physicians.

During Myerss hearing on APIs petition, two institute

psychiatrists testified that, in their opinion, administering

psychotropic medication to Myers would be appropriate. Myers

countered with testimony from two expert psychiatrists who

forcefully present[ed] their differing views on the advisability

of administering [psychotropic] medications to patients suffering

from schizophrenia. The first testified that psychotropic

medication is not the only viable treatment for schizophrenia.

While acknowledging that psychotropic medications played an

accepted role in the standard of care for [the] treatment of

psychosis, he advised that, because such drugs have so many

problems, they should be used in as small a dose for as short a

period of time as possible. Myerss second expert offered more

specific testimony that one of the drugs that API proposed to

administer to Myers Zyprexa was, despite being widely

prescribed, a very dangerous drug of dubious efficacy. He based

this testimony on a methodological analysis of the studies that

led the food and drug administration to approve Zyprexa for

clinical use.

At the conclusion of the hearing, the superior court

found that Myers lacked . . . insight into her own condition and

did not appreciate that she suffers from a mental disorder.

Although it noted that Myers understood the debate about the

advisability of psychotropic medication and had articulated a

reasonable objection to the proposed medication, the court

nonetheless ruled that she lacked the capacity to make informed

decisions regarding her treatment. Construing Alaskas statutes

as not allowing it to make an independent determination of Myerss

best interests, the court did not consider Myerss expert evidence

on the point and authorized API to administer psychotropic

medications to Myers based on APIs own assessment of Myerss best

interests.

The court nevertheless noted that it found Myerss case

troubling so much so that it issued an additional order

addressing in detail the arguments presented in the parties pre-

hearing briefs. In the order, the court found it troubling that

Alaskas statutory scheme prevented it from considering the merits

of APIs treatment plan, or weighing the objections of Myerss

experts. Because it believed that the statute unambiguously

limited the superior courts role to deciding whether Ms. Myers

has sufficient capacity to give informed consent, the court felt

constrained to adhere to its literal meaning. Yet the court

nevertheless emphasized that it found this limitation to be

problematic:

Where a patient, such as Ms. Myers, has a

history of undergoing a medical treatment she

found to be harmful, where she is found to

lack capacity to make her own medical

decisions and a valid debate exists in the

medical/psychiatric community as to the

safety and effectiveness of the proposed

treatment plan, it is troubling that the

statutory scheme apparently does not provide

a mechanism for presenting scientific

evidence challenging the proposed treatment

plan.

Myers now appeals.

III. DISCUSSION

Echoing the superior courts concern, Myers contends

that Alaskas statutory scheme violates her constitutional rights

to liberty2 and privacy.3 The central question she raises is

whether the state may force an unwilling mental patient to be

treated with psychotropic drugs without first obtaining a

judicial determination that this treatment is in the patients

best interests and that no less intrusive course of treatment is

available.

Myers argues that the right to refuse forced medication

is fundamental and that API cannot abridge this right without

first showing that medication would advance a compelling state

interest and that no less intrusive alternative is available.

She further contends that our states constitutional liberty and

privacy guarantees require that courts authorizing the

administration of psychotropic medications must find, first, that

the requested course of medication is in the patients best

interests; and, second, that the patient would presently consent

to the treatment if capable of making an informed decision.

In response, API initially contends that this appeal

should be dismissed as moot because Myers was released from API

soon after the superior court issued its ruling, so she never

actually received the authorized course of treatment. As to the

merits of Myerss constitutional claim, API denies that Myerss

interest in refusing unwanted psychotropic medication is

fundamental. Because Myers has been judged unable to make

informed decisions about her mental health condition, API

analogizes her status to the status of minors, who, API claims,

generally receive a different level of constitutional protection.

Therefore, API argues, in order to justify medicating Myers

without her consent, the state needs only to show that this

treatment would advance something less than a compelling state

interest. API further contends that, as a committed mental

patient, Myers has a competing constitutional interest in

receiving treatment for her illness.4 It asserts that the states

duty to provide [Myers] with treatment amounts to a legitimate

state interest one that we should deem sufficient to overcome

Myerss objections.

A. Alaskas Current Statutory Provisions

To place these arguments in perspective, we must begin

by considering Alaskas statutory provisions governing treatment

of mental patients. Alaska law recognizes and addresses a

distinct class of drugs called psychotropic medications.5

Psychotropic drugs affect the mind, behavior, intellectual

functions, perception, moods, and emotions6 and are known to

cause a number of potentially devastating side effects.7

[M]ost common . . . are the temporary,

muscular side effects (extra-pyramidal

symptoms) which disappear when the drug is

terminated; dystonic reactions (muscle

spasms, especially in the eyes, neck, face,

and arms; irregular flexing, writhing or

grimacing movements; protrusion of the

tongue); [and] akathesia (inability to stay

still, restlessness, agitation) . . .

Additionally, there are numerous other

nonmuscular effects, including drowsiness,

weakness, weight gain, dizziness, fainting,

low blood pressure, dry mouth, blurred

vision, loss of sexual desire, frigidity,

apathy, depression, constipation, diarrhea,

and changes in the blood.[8]

Courts have observed that the likelihood [that psychotropic drugs

will cause] at least some temporary side effects appears to be

undisputed9 and many have noted that the drugs may most

infamously cause Parkinsonian syndrome and tardive dyskinesia.10

Parkinsonian syndrome consists of muscular rigidity, fine resting

tremors, a masklike face, salivation, motor retardation, a

shuffling gait, and pill-rolling hand movements.11 Tardive

dyskinesia involves slow, rhythmical, repetitive, involuntary

movements of the mouth, lips, and tongue;12 it is permanent, and

its symptoms cannot currently be treated.13

Side effects aside, the truly intrusive nature of

psychotropic drugs may be best understood by appreciating that

they are literally intended to alter the mind.14 Recognizing that

purpose, many states have equated the intrusiveness of

psychotropic medication with the intrusiveness of

electroconvulsive therapy and psychosurgery.15

A special statutory regime governs involuntary

administration of these highly intrusive medications.16 It allows

the state to administer psychotropic medication without obtaining

a patients consent in both crisis and non-crisis situations.17

This case involves only the latter, and we emphasize at the

outset that our opinion does not extend to the use of

psychotropic medication in crisis or emergency situations.

Under Alaska law, to administer psychotropic drugs in a

non-crisis situation without first obtaining the patients

consent, the state must follow a two-step judicial process. The

first step requires the state to petition for the persons

commitment to a treatment facility.18 Persons may be involuntary

committed in Alaska if the state can show by clear and convincing

evidence that they are either mentally ill and, as a result,

likely to cause harm to themselves or others, or are gravely

disabled.19 Persons are deemed gravely disabled when they are so

unable to care for themselves that it seems very likely that they

will come to serious harm without help.20 To commit a mentally

ill person for more than seventy-two hours there must be, in

addition, a signed statement by two mental health professionals

declaring that treatment staff have considered and dismissed less

restrictive alternatives, and that they believe that the proposed

course of treatment (including involuntary commitment) will

improve the persons condition.21

An order authorizing a persons involuntary commitment

does not authorize the state to treat the committed person with

psychotropic drugs. Nor does it amount to a finding that the

patient is incapable of giving or withholding informed consent to

submit to such treatment.22 To treat an unwilling and

involuntarily committed mental patient with psychotropic

medication, the state must initiate the second step of the

process by filing a second petition, asking the court to approve

the treatment it proposes to give. At this second stage, the

state must prove two propositions by clear and convincing

evidence: (1) that the committed patient is currently unable to

give or withhold informed consent regarding an appropriate course

of treatment;23 (2) that the patient never previously made a

statement while competent that reliably expressed a desire to

refuse future treatment with psychotropic medication.24

In order to make informed decisions possible, the law

requires treatment facilities to give their patients certain

information concerning their situation and need for treatment,

including advice about: their diagnosis; proposed medications,

including possible side effects and interactions with other

drugs; their medical history; alternative treatments; and a

statement describing their right to give or withhold consent.25

For non-emergencies, the standard for determining the

patients capacity to give informed consent is laid out in AS

47.30.837(c).26 This provision allows a patient to refuse

medication unless the state shows, by clear and convincing

evidence, that the patient cannot demonstrate the capacity to

understand the patients situation and assimilate relevant facts,

is unable to participate in treatment decisions, or is unable to

articulate any objections to the proposed medication.27 Under

this provision, a patients inability to appreciate the presence

of a mental disorder is a relevant consideration but is not

dispositive.28

When the state files its petition to authorize

psychotropic medication, the law requires a visitor to be

appointed to assist the court when it considers the petition.

The visitor has a duty to gather and provide information to the

court on two issues: first, the visitor must evaluate the

patients present condition by administering a capacity

assessment; second, the visitor must conduct a search for any

prior expressed wishes of the patient regarding medication.29 The

search for prior expressions regarding medications includes both

written and oral statements:

The visitor shall gather pertinent

information and present it to the court in

written or oral form at the hearing. The

information must include documentation of the

following:

(1) the patients responses to a

capacity assessment instrument administered

at the request of the visitor;

(2) any expressed wishes of the patient

regarding medication, including wishes that

may have been expressed in a power of

attorney, a living will, an advance health

care directive under AS 13.52, or oral

statements of the patient, including

conversations with relatives and friends that

are significant persons in the patients life

as those conversations are remembered by the

relatives and friends; oral statements of

the patient should be accompanied by a

description of the circumstances under which

the patient made the statements, when

possible.[30]

Before authorizing psychotropic treatment, the court

must hold a hearing and consider all relevant evidence presented

by the petitioner, the respondent, and the visitor.31 At the end

of the hearing, the court may not authorize nonconsensual

psychotropic medication if it finds that the patient is presently

competent; in such cases, the court must honor the unwilling

patients wishes:

If the court determines that the patient is

competent to provide informed consent, the

court shall order the facility to honor the

patients decision about the use of

psychotropic medication.[32]

But if the court finds that the patient is presently incapable of

giving or withholding informed consent, and further determines

that the patient was also incompetent at the time of any

previously expressed wishes not to be medicated, then the statute

directs that the court shall authorize treatment:

If the court determines that the patient is

not competent to provide informed consent

and, by clear and convincing evidence, was

not competent to provide informed consent at

the time of previously expressed wishes

documented under [the visitors report], the

court shall approve the facilitys proposed

use of psychotropic medication.[33]

In short, once the court finds that the patient is

presently incapable of consenting and has never before expressed

medication-related wishes while competent, these provisions leave

the court no discretion to consider a patients best interests:

the provisions require it to approve the treatment.

B. Mootness

Soon after the superior court authorized API to

administer treatment, Myers was released. Because no

psychotropic medications were ever administered to her without

her consent, API argues that Myerss claims are now moot.

We generally refrain from deciding issues where the

facts have rendered the legal issues moot. 34 But we do not

enforce this rule rigidly, and have recognized that an exception

applies when a potentially moot case raises a matter of grave

public concern that is recurrent but capable of evading review.35

Here, API acknowledges that medication orders are time

critical, and that it is doubtful that an appeal from a

medication order could ever be completed within the orders period

of effectiveness. Nonetheless, API maintains that because this

case is the first challenge to the relevant statutes in eleven

years, it is unlikely that this controversy will actually recur.

API urges us to consider the issues limited track record of

repetition and to find that the public interest exception does

not apply to this case.

We have found the public interest exception to apply in

analogous settings. We have held, for example, that the

preadjudication detention of children is a matter of public

concern that was likely to recur.36 We similarly applied the

exception to a prisoner who challenged an order imposing solitary

confinement, even though the solitary time had already been

served.37

The United States Supreme Court has applied the public

interest exception in a case involving facts similar to those of

Myerss case. In Washington v. Harper, the Court considered a

mentally ill prisoners claim challenging the states efforts to

medicate him with antipsychotic drugs, even though the state had

abandoned its efforts.38 The Court declined to find the issue

moot, noting that the prisoner was still jailed, he still

suffered from schizophrenia, and the controversy could recur.39

Given the importance of the issues Myers raises, their

likelihood of recurring, and their ability to evade timely

appellate review, we similarly hold that the public interest

exception applies to this case.

C. Myerss Constitutional Challenge

Myers argues that, as interpreted in the superior

courts order, the provisions governing authorization of treatment

with psychotropic medications violate the Alaska Constitutions

guarantees of liberty and privacy. We agree.

The Alaska Constitutions opening provision, article I,

section 1, declares, This constitution is dedicated to the

principles that all persons have a natural right to life,

liberty, the pursuit of happiness, and the enjoyment of the

rewards of their own industry.40 Article I then sets out more

specific provisions guaranteeing individual liberty and privacy

in sections 7 and 22. Section 7 addresses liberty: No person

shall be deprived of life, liberty, or property, without due

process of law.41 Section 22 guarantees privacy: The right of the

people to privacy is recognized and shall not be infringed.42

Although the federal constitution sets the minimum

protections afforded to individual liberty and privacy interests,

the Alaska Constitution often provides more protection.43 We have

specifically recognized that Alaskas guarantee of privacy is

broader than the federal constitutions:

Since the citizens of Alaska, with their

strong emphasis on individual liberty,

enacted an amendment to the Alaska

Constitution expressly providing for a right

to privacy not found in the United States

Constitution, it can only be concluded that

the right is broader in scope than that of

the Federal Constitution.[44]

We have similarly declared Alaskas constitutional guarantee of

individual liberty to be more protective.45

We determine the boundaries of individual rights

guaranteed under the Alaska Constitution by balancing the

importance of the right at issue against the states interest in

imposing the disputed limitation.46 When a law places substantial

burdens on the exercise of a fundamental right, we require the

state to articulate a compelling [state] interest47 and to

demonstrate the absence of a less restrictive means to advance

[that] interest.48 But when the law interferes with an

individuals freedom in an area that is not characterized as

fundamental, we require the state to show a legitimate interest

and a close and substantial relationship between its interest and

its chosen means of advancing that interest.49

1. Importance of right to choose or reject medication

In the past we have recognized that Alaskas

constitutional rights of privacy and liberty encompass the

prerogative to control aspects of ones personal appearance,50

privacy in the home,51 and reproductive rights.52 We have noted

that few things [are] more personal than ones own body,53 and we

have held that Alaskas constitutional right to privacy clearly .

. . shields the ingestion of food, beverages or other substances.54

Because psychotropic medication can have profound and

lasting negative effects on a patients mind and body, we now

similarly hold that Alaskas statutory provisions permitting

nonconsensual treatment with psychotropic medications implicate

fundamental liberty and privacy interests.55

We are hardly the first court to reach this conclusion.

A number of state supreme courts have declared that the right to

refuse psychotropic medication is fundamental; we find their

opinions to be both instructive and persuasive.56

In Rogers v. Commissioner of the Department of Mental

Health, the Supreme Judicial Court of Massachusetts held that a

committed mental patient could not be forcibly medicated with

antipsychotic drugs unless a court determined both that he was

incompetent and that he would have consented to the

administration of the drugs if he was competent.57 Although the

courts opinion relied on Massachusettss statutory and common law,

rather than on interpretation of the state constitution, the

court emphasized the constitutional and common law origins of

[e]very competent adult[s] . . . right to [forgo] treatment, or

even cure, if it entails what for him are intolerable

consequences or risks however unwise his sense of values may be

in the eyes of the medical profession. 58 The court further

emphasized that mentally ill patients have dignity and worth

equal to other individuals; on this basis, the court held that a

committed mental patient is entitled to an independent judicial

determination of whether the patient would have consented to

treatment with psychotropic drugs.59 And the court explicitly

rejected the argument that a substituted judgment determination

of this kind could safely be left to the treating doctors rather

than the courts.60

In Rivers v. Katz, the New York Court of Appeals

similarly located a persons right to control his medical

treatment in state common law but went on to declare that [t]his

fundamental common-law right is coextensive with the patients

liberty interest protected by the due process clause of our State

Constitution.61 It wrote,

In our system of a free government, where

notions of individual autonomy and free

choice are cherished, it is the individual

who must have the final say in respect to

decisions regarding his medical treatment in

order to insure that the greatest possible

protection is accorded his autonomy and

freedom from unwanted interference with the

furtherance of his own desires[.][62]

While acknowledging the states police power to forcibly

medicate mental patients in emergency situations a situation not

at issue in the case before us the court held that in New York,

decisions to forcibly medicate persons in all other circumstances

must be made by the courts.63 If the court concludes that the

patient lacks the capacity to determine the course of his own

treatment, the court must [then] determine whether the proposed

treatment is narrowly tailored to give substantive effect to the

patients liberty interest, taking into consideration all relevant

circumstances, including the patients best interests, the

benefits to be gained from the treatment, the adverse side

effects associated with the treatment and any less intrusive

alternative treatments.64

The Minnesota Supreme Court reached a similar result in

Jarvis v. Levine.65 It held that Minnesotas constitutional

guarantee of privacy begins with protecting the integrity of ones

own body and includes the right not to have it altered or invaded

without consent. Commitment to an institution does not eliminate

this right. When intrusive treatment is proposed, the

professional judgment of medical personnel insufficiently

protects this basic human right.66 Thus, in Minnesota, the

forcible medication of a committed mental patient requires both a

judicial finding of incapacity to give informed consent and a

judicial hearing to determine the necessity and reasonableness of

the treatment.67

Most recently, the Ohio Supreme Court held in Steele v.

Hamilton County Community Mental Health Board that the state

could forcibly medicate a mental patient under its parens patriae

authority only after a court had found, by clear and convincing

evidence, that (1) the patient does not have the capacity to give

or withhold informed consent regarding his/her treatment, (2) it

is in the patients best interest to take the medication, i.e.,

the benefits of the medication outweigh the side effects, and (3)

no less intrusive treatment will be as effective in treating the

mental illness.68 Ruling that the right to refuse medical

treatment is a fundamental right in our country, where personal

security, bodily integrity, and autonomy are cherished liberties,

the court emphasized that [t]hese liberties were not created by

statute or case law . . . [r]ather, they are rights inherent in

every individual that find explicit protection under the Ohio

Constitution.69

Given the nature and potentially devastating impact of

psychotropic medications70 as well as the broad scope of the

Alaska Constitutions liberty and privacy guarantees we now

similarly hold that the right to refuse to take psychotropic

drugs is fundamental; and we further hold that this right must

extend equally to mentally ill persons, so that the mentally ill

are not treated as persons of lesser status or dignity because of

their illness.71

When no emergency exists, then, 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.72

2. Importance of countervailing state interests

API argues that medicating Myers would serve two

compelling state interests: it would prevent Myers from harming

herself or others, and would ameliorate Myerss condition. These

interests, API argues, find legitimate sources in two traditional

state powers: the states police power and its parens patriae

duty.73

a. Police power

API argues that the states police power is implicated

here because the superior court found that Myers was a danger to

herself and others. Just as citizens have a right to some

protection from the state, API argues, the state has a legitimate

and compelling interest in the physical safety of its citizens.

In APIs view, this interest is sufficient to overcome a patients

right to refuse psychotropic medication.

In an emergency situation, API might be correct.

Indeed, the Supreme Court of Ohio has so held, ruling that the

police power can justify medication when the state perceives an

imminent threat of harm.74 But that is not the situation here.

As already mentioned, this case centers on the use of

psychotropic medication in non-emergency situations.75 And API

has not maintained that Myers posed an imminent threat of harm to

herself or anyone else after she was committed for treatment at

API. In these circumstances, the states power of civil

commitment sufficed to meet its police-power interest, so we fail

to see how the issue of medication implicates the states police

power at all:

If there is no emergency, hospital personnel

are in no danger; the only purpose of

forcible medication in these circumstances

would be to help the patient. But the basic

premise of the right to privacy is the

freedom to decide whether we prefer to be

helped, or to be left alone.[76]

Indeed, it seems noteworthy that the statutory

provision that governs petitions to administer psychotropics in

non-emergency situations makes no mention of the police power,

and does not require a treatment facility to make any showing of

institutional risk or danger to others as a condition for

authorizing treatment.77 The applicable statutes allow medication

to be authorized without any finding judicial or medical that

the patient poses a danger.78

The states police power its power to protect others

from Myers thus provides no justification, compelling or

otherwise, for API to override Myerss choice to accept or refuse

psychotropic medication.

b. Parens patriae

API proposes a second compelling interest: the states

parens patriae obligation its duty to protect Myers from

herself. The doctrine of parens patriae refers to the inherent

power and authority of the state to protect the person and

property of an individual who lack[s] legal age or capacity.79

Because the superior court found Myers incapable of making

informed decisions about her mental illness, API reasons that the

state must be permitted to make those decisions for her.80

We readily agree that the states parens patriae

obligation does give it a compelling interest in administering

psychotropic medication to unwilling mental patients in some

situations.81 But this simply raises the difficult question: does

the current statutory scheme use an overly intrusive means to

attain the states interest by failing to require an independent

judicial determination of the patients best interests? To answer

this question, we turn to the third step of the constitutional

balancing test, the least intrusive alternative requirement.

3. Least intrusive means requirement

Although API acknowledges that its patients best

interests must be considered, it insists that the superior courts

order must be affirmed because the current statutory scheme

already meets this criterion by requiring the petitioning

facilitys physicians to determine, before they petition for

authorization, that psychotropic drugs would be in their patients

best interests.82 API maintains that, so long as doctors make

this determination, there is no need for the court to give

further consideration to the issue in deciding whether to

authorize nonconsensual treatment.

We disagree. In our view, before a state may

administer psychotropic drugs to a non-consenting mentally ill

patient in a non-emergency setting, an independent judicial best

interests determination is constitutionally necessary to ensure

that the proposed treatment is actually the least intrusive means

of protecting the patient.

API argues that its doctors can be trusted to

adequately protect patients constitutional interests and claims

that this is the legislatures position, too. In APIs view, the

current statutory scheme reflects a legislative belief that

doctors alone are the proper arbiters of patients best interests.

And API asserts that its medical staff properly arbitrated here

by determining that psychotropics were in Myerss best interest

and represented the least intrusive means available to advance

the states interest in her welfare.

But the issue is not one of medical competence or

expertise. As we have already seen, the right at stake here the

right to choose or reject medical treatment finds its source in

the fundamental constitutional guarantees of liberty and privacy.

The constitution itself requires courts, not physicians, to

protect and enforce these guarantees. Ultimately, then, whether

Myerss best interests will be served by allowing the state to

make a vital choice that is properly hers presents a

constitutional question; and though the answer certainly must be

fully informed by medical advice received with appropriate

deference, in the final analysis the answer must take the form of

a legal judgment that hinges not on medical expertise but on

constitutional principles aimed at protecting individual choice.

Apart from this overarching need to ensure that courts

ultimately decide constitutionally based questions, a secondary

factor that militates in favor of independent judicial review of

best-interests issues is the inherent risk of procedural

unfairness that inevitably arises when a public treatment

facility possesses unreviewable power to determine its own

patients best interests. Many cases describe the unavoidable

tensions between institutional pressures and individual best

interests that can arise in this setting: The doctors who are

attempting to treat as well as to maintain order in the hospital

have interests in conflict with those of their patients who may

wish to avoid medication. . . . Economic considerations may also

create conflicts[.]83 Courts and commentators alike have

documented numerous instances in which these tensions have

actually resulted in abuse by those claiming to act in [a

patients] best interests.84 And even in institutional settings

such as prisons, where judicial review of treatment decisions has

traditionally not been required, case law strongly suggests that

at a minimum, a formal system of independent administrative

review may be necessary to guarantee patients basic due process

rights.85 Notably, in Alaska, no formal system for independent

internal review exists for best interests determinations made by

treating physicians at state institutions like API because,

despite an express statutory mandate, the Department of Health

and Social Services has not yet adopted regulations establishing

formal procedures and standards for treating mental patients with

psychotropic drugs.86

As the Minnesota Supreme Court pointed out in

addressing the need for judicial determination of patients best

interests,

When medical judgments collide with a

patients fundamental rights, . . . it is the

courts, not the doctors, who possess the

necessary expertise. . . . [T]he final

decision to accept or reject a proposed

medical procedure and its attendant risks is

ultimately not a medical decision, but a

personal choice.[87]

The Supreme Judicial Court of Massachusetts reached the

same conclusion, emphasizing that a judicial resolution of best

interests is crucial precisely because decisions based on

personal choice often make little sense from a strictly medical

perspective:

The defendants argue that they, as doctors,

should be responsible for making treatment

decisions for involuntarily committed

patients, whether competent or not. We do not

agree. Every competent adult has a right to

[forgo] treatment, or even cure, if it

entails what for him are intolerable

consequences or risks however unwise his

sense of values may be in the eyes of the

medical profession. [88]

And Ohios Supreme Court has similarly described the task of

deciding an involuntarily committed mentally ill persons interest

in refusing [psychotropic] medication as a uniquely judicial

function.89

The Minnesota Supreme Court aptly underscored the

constitutional underpinnings for its decision that this issue

must be directed to the courts:

The courts responsibility for the patient

does not end at commitment. Commitment to an

institution does not deprive an individual of

all legal rights, . . . especially

fundamental rights guaranteed by our

Constitution. It would be both unreasonable

and unnecessary for the courts to become

involved in every post-commitment treatment

decision; [but] it is equally clear that the

courts cannot abdicate all responsibility for

protecting a committed persons fundamental

rights merely because some degree of medical

judgment is implicated.[90]

We agree with these decisions and join them in

concluding that the right to refuse psychotropic medication is a

fundamental right, though not an absolute one; that the ultimate

responsibility for providing adequate protection of that right

rests with the courts; and that adequate protection of that right

can only be ensured by an independent judicial determination of

the patients best interests considered in light of any available

less intrusive treatments.91

4. Best-interests criteria

Having determined that courts must engage in best-

interest inquiries, we believe that some discussion is in order

concerning appropriate criteria to guide courts on this issue.

Evaluating whether a proposed course of psychotropic

medication is in the best interests of a patient will inevitably

be a fact-specific endeavor. At a minimum, we think that 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.92 As

codified in AS 47.30.837(d)(2), these items include:

(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;

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[.][93]

Considering these factors will be crucial in establishing the

patients best interests as well as in illuminating the existence

of alternative treatments.94

And here, too, we find the work of other state courts

to be helpful. The Supreme Court of Minnesota has held that in

order to determine the necessity and reasonableness of a

treatment, courts should balance [a] patients need for treatment

against the intrusiveness of the prescribed treatment.95 Factors

that the Minnesota court believed should be considered included:

(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.[96]

We find these approaches to be sensible.

Finally, we note that the parties have disputed the

standard of proof that the state should be required to meet in

establishing the patients best interests. API argues for a

preponderance of the evidence standard, but it offers no legal

authority to support that position. Other courts that have

required best-interests determinations in this area have

uniformly adopted the clear and convincing standard.97 Moreover,

our existing statutory scheme already adopts this standard for

findings required to authorize psychotropic medication.98 We see

no reason to dilute the standard governing the best-interests

determination, and hold that the clear and convincing evidence

standard controls the issue.

5. Substituted-judgment standard

Myers separately argues that we should follow the

example of the Supreme Judicial Court of Massachusetts and

require courts authorizing medication to make an additional

finding applying the substituted judgment approach.99 The

substituted-judgment approach would require courts to attempt to

determine what course of treatment an incompetent patient would

likely choose if currently capable of making an informed

decision.

But unlike the statutory scheme at issue in

Massachusetts cases, our own statutes incorporate provisions

designed to achieve the same goals as the substituted- judgment

approach, but by a slightly different path. As already mentioned

above, when a treatment facility files a petition for

authorization to treat a mentally ill patient with psychotropic

drugs, Alaska law requires the appointment of a visitor to help

gather relevant information for the hearing. One of the two core

duties assigned to the visitor under AS 47.30.839(d) is to

investigate, document, and report any prior statements oral or

written that the patient might have made while competent that

expressed wishes regarding medication.100 Moreover, as also

described above, if the information gathered and documented by

the visitor enables the court to find that the patient has

expressed a prior competent desire not to be medicated, then the

court may not authorize treatment; this emerges from the language

of AS 47.30.839(g), which requires the court to order treatment

only if it finds that a patient is presently incompetent and that

the patient was incompetent at the time of any previously

expressed wishes reported by the visitor:

(g) If the court determines that the patient

is not competent to provide informed consent

and, by clear and convincing evidence, was

not competent to provide informed consent at

the time of previously expressed wishes

documented [by the visitor] under (d)(2) of

this section, the court shall approve the

facilitys proposed use of psychotropic

medication.[101]

Because neither party has briefed or addressed this

provision on appeal, and because Myers did not attempt to rely on

it below,102 we need not decide its exact scope and meaning, and

express no opinion on the point here. At least arguably, though,

it might be read to give courts authority to deny a petition if

the patient made prior competent statements expressing a desire

not to be medicated; and if so, it would seem to serve a similar

purpose to that of the substituted-judgment approach advocated by

Myers. Since the meaning of this provision is not at issue here

and remains open for future consideration, and since the

provision may ultimately be interpreted as performing many of the

same functions as the substituted-judgment approach, we see no

present need to decide Myerss argument urging us to adopt that

approach.

IV. CONCLUSION

We conclude that the Alaska Constitutions guarantees of

liberty and privacy require an independent judicial determination

of an incompetent mental patients best interests before the

superior court may authorize a facility like API to treat the

patient with psychotropic drugs. Because the superior court did

not determine Myerss best interest before authorizing

psychotropic medications, we VACATE its involuntary treatment

order. Although no further proceedings are needed here because

Myerss case is now technically moot, we hold that in future non-

emergency cases a court may not permit a treatment facility to

administer psychotropic drugs unless the court makes findings

that comply with all applicable statutory requirements and, in

addition, expressly finds by clear and convincing evidence that

the proposed treatment is in the patients best interests and that

no less intrusive alternative is available.

_______________________________

1 AS 47.30.839(g) (emphasis added).

2 Alaska Const. art. I, 7.

3 Alaska Const. art. I, 22.

4 Cf. Rust v. State, 582 P.2d 134, 138-40 (Alaska 1978).

5 See AS 47.30.836; AS 47.30.838.

6 Steele v. Hamilton County Cmty. Mental Health Bd., 736

N.E.2d 10, 15 n.3 (Ohio 2000) (internal citations omitted).

7 API did not dispute that psychotropic medication can

cause potentially severe side effects.

8 Jarvis v. Levine, 418 N.W.2d 139, 145 (Minn. 1988)

(quoting Earl Plotkin, Limiting the Therapeutic Orgy: Mental

Patients Right to Refuse Treatment, 72 Nw. U. L. Rev. 461, 475-76

(1977)).

9 Jarvis, 418 N.W.2d at 145.

10 Steele, 736 N.E.2d at 17 (quoting Bruce J. Winick, The

Right to Refuse Mental Health Treatment 72-73 (1997)).

11 Id. (quoting Winick, The Right to Refuse Mental Health

Treatment 72-73 (1997)).

12 Id. (quoting Winick, The Right to Refuse Mental Health

Treatment 72-73 (1997)).

13 Id. (quoting Winick, The Right to Refuse Mental Health

Treatment 72-73 (1997)).

14 Riggins v. Nevada, 504 U.S. 127, 134 (1992) (The

purpose of the drugs is to alter the chemical balance in a

patients brain, leading to changes, intended to be beneficial, in

his or her cognitive processes.).

15 See, e.g., Jarvis, 418 N.W.2d at 146; In re K.K.B., 609

P.2d 747, 749 (Okla. 1980) ([W]e deal today only with consent to

so called organic therapy which can change a patients behavior

without his cooperation such as electroshock, psychosurgery and,

as in the instant case, the use of anti-psychotic drugs. These

treatments are intrusive in nature and an invasion of the body.)

(internal citations omitted).

16 See AS 47.30.836, Psychotropic medication in

nonemergency, and AS 47.30.838, Psychotropic medication in

emergencies.

17 Id. AS 47.30.839 sets out the procedures for obtaining

a court order for the forcible administration of psychotropic

medication in both emergency and non-emergency situations.

18 See AS 47.30.700-.815 for procedures governing

involuntary admission of mental patients for treatment.

19 See AS 47.30.735(c); AS 47.30.725(b).

20 AS 47.30.915(7) defines gravely disabled to mean a

condition in which a person as a result of mental illness

(A) is in danger of physical harm arising

from such complete neglect of basic needs for

food, clothing, shelter, or personal safety

as to render serious accident, illness, or

death highly probable if care by another is

not taken; or

(B) will, if not treated, suffer or continue

to suffer severe and abnormal mental,

emotional, or physical distress, and this

distress is associated with significant

impairment of judgment, reason, or behavior

causing a substantial deterioration of the

persons previous ability to function

independently.

21 AS 47.30.730(a)(2) & (3).

22 Other state courts have noted the nearly unanimous

modern trend in the courts, and among psychiatric and legal

commentators that there is no significant relationship between

the need for hospitalization of mentally ill patients and their

ability to make treatment decisions. Rivers v. Katz, 495 N.E.2d

337, 342 (N.Y. 1986); see also Rogers v. Commr of the Dept of

Mental Health, 458 N.E.2d 308, 314 (Mass. 1983) (involuntarily

committed patients are competent until adjudicated incompetent);

Davis v. Hubbard, 506 F. Supp. 915, 935 (N.D. Ohio 1980) (there

is no necessary relationship between mental illness and the

ability to give informed consent).

23 See AS 47.30.836(3); AS 47.30.839(g).

24 See AS 47.30.839(g).

25 AS 47.30.837(d)(2) provides:

informed means that the evaluation facility

or designated treatment facility has given

the patient all information that is material

to the patients decision to give or withhold

consent, including

(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;

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;

(E) information about alternative treatments

and their risks, side effects, and benefits,

including the risks of nontreatment; and

(F) a statement describing the patients

right to give or withhold consent to the

administration of psychotropic medications in

nonemergency situations, the procedure for

withdrawing consent, and notification that a

court may override the patients refusal[.]

26 AS 47.30.837 provides, in relevant part:

believe that the patient is not competent to

make medical or mental health treatment

decisions and the facility wishes to

administer psychotropic medication to the

patient, the facility shall follow

procedures of AS 47.30.839.

(d) In this section,

(1) competent means that the patient

(A) has the capacity to assimilate relevant

facts and to appreciate and understand the

patients situation with regard to those

facts, including the information described in

(2) of this subsection;

(B) appreciates that the patient has a

mental disorder or impairment, if the

evidence so indicates; denial of a

significantly disabling disorder or

impairment, when faced with substantial

evidence of its existence, constitutes

evidence that the patient lacks the

capability to make mental health treatment

decisions;

treatment decisions by means of a rational

thought process; and

(D) is able to articulate reasonable

objections to using the offered medication[.]

27 See also AS 47.30.839(g); AS 47.30.825(c).

28 AS 47.30.837(d)(1)(B).

29 AS 47.30.839(d).

30 Id.

31 See AS 47.30.839(e).

32 AS 47.30.839(f).

33 AS 47.30.839(g).

34 Hayes v. Charney, 693 P.2d 831, 834 (Alaska 1985)

(quoting Doe v. State, 487 P.2d 47, 53 (Alaska 1971)).

35 Id. (quoting Doe, 487 P.2d at 53).

36 See Doe, 487 P.2d at 53.

37 Brandon v. Dept of Corr., 865 P.2d 87, 92 n.6 (Alaska

1993).

38 Washington v. Harper, 494 U.S. 210, 218-19 (1990).

39 Id. at 219; see also State ex. rel. Jones v.

Gehardstein, 416 N.W.2d 883, 888 (Wis. 1987).

40 Alaska Const. art. I, 1.

41 Alaska Const. art. I, 7.

42 Alaska Const. art. I, 22.

43 See, e.g., Valley Hosp. Assn v. Mat-Su Coalition, 948

P.2d 963, 966-67 (Alaska 1997).

44 Anchorage Police Dept Employees Assn v. Municipality of

Anchorage, 24 P.3d 547, 550 (Alaska 2001) (quoting Ravin v.

State, 537 P.2d 494, 514-15 (Alaska 1975) (Boochever, J., and

Connor, J., concurring)).

45 See, e.g., Breese v. Smith, 501 P.2d 159, 170 (Alaska

1972).

46 See, e.g., Sampson v. State, 31 P.3d 88, 91 (Alaska

2001).

47 Ranney v. Whitewater Engg, 122 P.3d 214, 222 (Alaska

2005).

48 Sampson, 31 P.3d at 91.

49 Ranney, 122 P.3d at 222 (quoting Sampson, 31 P.3d at

91).

50 See Breese, 501 P.2d at 170.

51 See Ravin, 537 P.2d at 500, 502-03.

52 See Valley Hosp. Assn, 948 P.2d at 969.

53 Breese, 501 P.2d at 169; but see Sampson, 31 P.3d at 92

(holding that the constitutional right to control ones own body

does not create a constitutional right to assisted suicide).

54 Gray v. State, 525 P.2d 524, 528 (Alaska 1974).

55 The issue before us is a constitutional question to

which we apply our independent judgment. Constitutional

provisions, we have held, should be given a reasonable and

practical interpretation in accordance with common sense. Arco

Alaska, Inc. v. State, 824 P.2d 708, 710 (Alaska 1992) (citing

Kochutin v. State, 739 P.2d 170, 171 (Alaska 1987)).

56 In addressing the importance of a committed patients

right to choose or refuse psychotropic medications, APIs briefing

relies heavily on United States Supreme Court cases dealing with

the forced medication of mentally ill prisoners. See Sell v.

United States, 539 U.S. 166 (2003) (defendant awaiting federal

criminal trial); Riggins v. Nevada, 504 U.S. 127 (1992)

(defendant awaiting state criminal trial); Washington v. Harper,

494 U.S. 210 (1990) (convicted state prisoner). In contrast to

the state cases we rely on, which deal with civilly committed

patients, the federal cases cited by API have little value here

because prisoners rights differ markedly from the rights of

civilly committed mental patients. The prisoners involved in

most of those cases had greatly diminished liberty interests

because they had been convicted and incarcerated for criminal

offenses, not because they were mentally ill. Further, in all of

those prisoner cases even Sell v. United States, which involved

a mentally ill prisoner awaiting trial the extraordinary

security risks inherent in managing incarcerated criminal

defendants greatly increased the strength of the governments

administrative and institutional interests in providing mentally

ill prisoners with medical treatment. Cf. In re Qawi, 81 P.3d

224, 232 (Cal. 2004) (even competent prison inmate can be

forcibly medicated if he is a danger to himself and others and

treatment is in his best medical interest). Here, API has never

asserted that Myers posed an imminent threat of danger to any of

APIs patients or staff, and it has never suggested that its

institutional or administrative interests compelled it to treat

her with psychotropic drugs.

57 Rogers v. Commissioner of Dept of Mental Health, 458

N.E.2d 308, 311 (Mass. 1983).

58 Id. at 310, 314 (quoting Harnish v. Childrens Hosp.

Med. Ctr., 439 N.E.2d 240, 242 (Mass. 1982) (internal citations

omitted)).

59 Id. at 315 (To protect the incompetent person within

its power, the State must recognize the dignity and worth of such

a person and afford to that person the same panoply of rights and

choices it recognizes in competent persons.).

60 See id. at 317.

61 Rivers v. Katz, 495 N.E.2d 337, 341 (N.Y. 1986) (It is

a firmly established principle of the common law of New York that

every individual of adult years and sound mind has a right to

determine what shall be done with his own body and to control the

course of his medical treatment.) (internal citations omitted).

62 Id.

63 Id. at 343-44.

64 Id. at 344.

65 Jarvis v. Levine, 418 N.W.2d 139 (Minn. 1988).

66 Id. at 148.

67 Id. at 148 n.7.

68 Steele v. Hamilton County Cmty. Mental Health Bd., 736

N.E.2d 10, 21 (Ohio 2000).

69 Id. at 15.

70 See above, part III.A.

71 Rivers, 495 N.E. 2d at 341; see also Rogers, 458 N.E.2d

at 315 (To protect the incompetent person within its power, the

State must recognize the dignity and worth of such a person and

afford to that person the same panoply of rights and choices it

recognizes in competent persons.).

72 Cf. Valley Hosp. Assn, 948 P.2d at 969.

73 APIs brief actually claims three interests; but one of

the them the states duty to provide treatment to committed

mental patients, established in Rust v. State, 582 P.2d 134

(Alaska 1978) derives from the states parens patriae authority,

id. at 139-40, so we treat the two claimed interests as one.

74 Steele, 736 N.E.2d at 18 (holding this to be the only

situation in which the police power can serve as a compelling

justification).

75 See AS 47.30.839(a)(2).

76 In re K.K.B., 609 P.2d 747, 751 (Okla. 1980).

77 Under AS 47.30.839(g), a court can grant authorization

to medicate without ever considering whether or not the patient

poses a threat of harm to anyone. And a treatment facility may

seek involuntary medication of a patient in a non-crisis

situation, under AS 47.30.839(a)(2), if the facility has reason

to believe the patient is incapable of giving informed consent

and simply wishes to.

78 See AS 47.30.836, .839.

79 Pub. Defender Agency v. Superior Court, Third Judicial

Dist., 534 P.2d 947, 949 (Alaska 1975); Blacks Law Dictionary

1084 (8th ed. 2004).

80 API also more narrowly and forcefully argues that our

decision in Rust v. State, 582 P.2d 134 (Alaska 1978),

effectively concluded that the states parens patriae duty

affirmatively required API to give Myers the medications that its

doctors recommended. On this point, we disagree. We noted in

Rust that some courts have reasoned from the parens patriae

principle to find that mentally ill persons, once committed, have

a right to treatment. Id. at 140. But that observation has no

direct bearing here; this case involves the right of a committed

patient to refuse forced treatment, not the treatment facilitys

general obligation to provide treatment to willing patients upon

their commitment.

81 To conclude otherwise would mean that the state could

never use psychotropic drugs without the patients consent a

position that Myers does not assert.

82 API supports its claim that the current statutory

regime requires a medical determination of best interests by

citing AS 47.30.523, AS 47.30.547, AS 47.30.590, AS 47.30.655, AS

47.30.660, AS 47.30.690, AS 47.30.785, AS 47.30.825,

AS 47.30.870, AS 47.30.875, and AS 47.30.958. Our decision that

a judicial determination of best interests is required makes it

unnecessary to consider these provisions.

83 Rogers, 458 N.E.2d at 317-18 n.19.

84 Id. at 320-21. See, e.g., Rennie v. Klein, 476 F.

Supp. 1294, 1299 (D.N.J. 1979) (the medical director of the

Marlboro New Jersey State Hospital stated in an office memorandum

that the hospital uses medication as a form of control and as a

substitute for treatment); Halderman v. Pennhurst State Sch. &

Hosp., 446 F. Supp. 1295, 1307 (E.D. Pa. 1977) (dangerous

psychotropic drugs were used on mentally retarded persons for

purposes of behavior control and staff convenience, rather than

for legitimate treatment needs); Clites v. State, 322 N.W.2d 917,

921 (Iowa App. 1982) (damages awarded where major tranquilizers

used on mentally retarded child as a convenience or expediency

program rather than a therapeutic program); Jessica Litman, Note,

A Common Law Remedy For Forcible Medication of the

Institutionalized Mentally Ill, 82 Colum. L. Rev. 1720, 1721 n.9

(1982) (describing cases in which psychotropic drugs were found

to be used for the convenience of the staff and for punishment of

patients); Alexander D. Brooks, The Constitutional Right to

Refuse Antipsychotic Medications, 8 Bull. Am. Acad. of Psychiatry

and Law 179, 206 (1980) (staff too often abuses the management

function of medications and slips into the use of medications for

its own convenience); Edward Opton, Psychiatric Violence Against

Prisoners: When Therapy Is Punishment, 45 Miss. L.J. 605, 623

(1974) ([I]n mental institutions the bureaucratic needs of the

institution for passivity, obedience and submission take

precedence over the therapeutic needs of the patients for

development of autonomy, initiative, and self-control); George E.

Crane, Clinical Psychopharmacology in Its 20th Year, 181 Science

124, 125 (1973) (drugs are prescribed to solve all types of

management problems).

85 See, e.g., Washington v. Harper, 494 U.S. 210, 233

(1990) (upholding Washingtons statutory system providing for

review of medication decisions for mentally ill pretrial

prisoners by an administrative hearing committee made up of

individuals who were not involved in the inmates current

treatment or diagnosis, but strongly suggesting that the review

committees independence was key to finding Washingtons procedure

adequate); cf. In re Qawi, 81 P.3d 224, 232 (Cal. 2004) (citing

Harper, 494 U.S. at 229, for the proposition that even a

competent prison inmate, for example, may be forcibly medicated,

consistent with the federal due process clause, if it is

determined that he is a danger to himself and others, and that

the treatment is in his medical interest, as determined by an

independent medical board).

86 See AS 47.30.660(b)(14) & (16).

87 Jarvis, 418 N.W.2d at 147-48 (original emphasis).

88 Rogers, 458 N.E.2d at 314 (citing Harnish v. Childrens

Hosp. Med. Ctr., 439 N.E.2d 240, 242 (1982)); cf. Rivers v. Katz,

495 N.E.2d 337, 341 (N.Y. 1986) (a patients right to determine

the course of his medical treatment [is] paramount . . . and [ ]

the right of a competent adult to refuse medical treatment must

be honored, even though the recommended treatment may be

beneficial, or even necessary to preserve the patients life);

Steele, 736 N.E.2d at 20 (the patients wishes . . . will be

honored, no matter how foolish some may perceive that decision to

be).

89 Steele, 736 N.E.2d at 22. Cf. Price v. Sheppard, 239

N.W.2d 905, 912-13 (Minn. 1976) (Because the potential impact of

the more intrusive forms of treatment is so great, we are

reluctant in those cases where the patient or guardian refuse

their consent, to leave the imposition of the more intrusive

forms of treatment solely within the discretion of medical

personnel at our state hospitals.); Jarvis, 418 N.W.2d at 148

([w]hen intrusive treatment is proposed, the professional

judgment of medical personnel insufficiently protects this basic

human right).

90 Jarvis, 418 N.W.2d at 147 (original emphasis).

91 Cf. Steele, 736 N.E.2d at 21 (the state can forcibly

medicate a mental patient under its parens patriae authority only

after a court finds, by clear and convincing evidence, that (1)

the patient does not have the capacity to give or withhold

informed consent regarding his/her treatment, (2) it is in the

patients best interest to take the medication, i.e., the benefits

of the medication outweigh the side effects, and (3) no less

intrusive treatment will be as effective in treating the mental

illness); and Rivers v. Katz, 495 N.E.2d 337, 344 (N.Y. 1986) (if

a court concludes that the patient lacks the capacity to

determine the course of his own treatment, the court must then

determine whether the proposed treatment is narrowly tailored to

give substantive effect to the patients liberty interest, taking

into consideration all relevant circumstances, including the

patients best interests, the benefits to be gained from the

treatment, the adverse side effects associated with the treatment

and any less intrusive alternative treatments).

92 AS 47.30.837(d)(2).

93 Id.

94 See id., subsection (d)(2)(E).

95 Price, 239 N.W.2d at 913.

96 See id.

97 See, e.g., Steele, 736 N.E.2d at 20; In re M.P., 510

N.E.2d 645, 647 (Ind. 1987); People v. Medina, 705 P.2d 961, 973

(Colo. 1985).

98 See AS 47.30.839(g).

99 See Rogers, 458 N.E.2d at 323.

100 In relevant part, AS 47.30.839(d) says:

Upon the filing of a petition . . . the

court shall direct the office of public

advocacy to provide a visitor to assist the

court in investigating the issue of whether

the patient has the capacity to give or

withhold informed consent to the

administration of psychotropic medication.

The visitor shall gather pertinent

information and present it to the court in

written or oral form at the hearing. The

information must include documentation of the

following:

. . . .

(2) any expressed wishes of the patient

regarding medication, including wishes that

may have been expressed in a power of

attorney, a living will, an advance health

care directive . . . , or oral statements of

the patient, including conversations with

relatives and friends that are significant

persons in the patients life as those

conversations are remembered by the relatives

and friends; oral statements of the patient

should be accompanied by a description of the

circumstances under which the patient made

the statements, when possible.

101 (Emphasis added.)

102 In fact it appears that the visitor in this case was

unable to submit a complete report. Myers voiced no objection,

did not ask for a more complete investigation of prior expressed

wishes, and did not ask for a ruling addressing the point. The

superior courts decision made no finding on the issue of prior

expressed wishes, and Myers has not pursued that point on appeal.

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