Law Offices of James B. Gottstein

Office of Counsel

406 G Street, Suite 206

Anchorage, AK 99501

907-274-7686 phone

907-274-9493 fax

 

Attorney for Faith J. Myers, Respondent

 

IN THE SUPERIOR COURT FOR THE STATE OF ALASKA

THIRD JUDICIAL DISTRICT, AT ANCHORAGE

In The Matter of the Hospitalization )

)

of )

)

FAITH J. MYERS )

) Case No. 3AN 03-277 P/S

 

STANDARDS RELEVANT TO FORCED MEDICATION DECISION

 

As with all of Title 47, Chapter 30, of the Alaska Statutes pertaining to involuntary commitment and forced medication, there are no Alaska Supreme Court cases interpreting the statutes. Thus, in addition to the statute itself, this Court must look to how other states have interpreted similar statutory schemes, as well as interpretations of the constitutions of the United States and the State of Alaska. In addition, the seemingly simple question the court asked, "what is the standard," is not so simple in the context of this proceeding.

AS 47.30.839(g) provides:

(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 under (d)(2) of this section, the court shall approve the facility's proposed use of psychotropic medication

It is clear under the statute that the standard is clear and convincing for an advance directive, but appears silent for the current proceeding. Respondent respectfully suggests that it has to be by clear and convincing evidence for this proceeding as well.

Rivers v. Katz, 495 N.E.2d 337, 343-4 (NY 1986) held:

The State would bear the burden of demonstrating by clear and convincing evidence the patient's incapacity to make a treatment decision.

It appears this is based on state constitutional grounds. See attached copy of McKinney's Judiciary Law 35.

The right to privacy under the Alaska Constitution is perhaps the strongest in the country. See, e.g., Valley Hosp. Ass'n, Inc. v. Mat-Su Coalition for Choice, 948 P.2d 963 (Alaska,1997), Ravin v. State, 537 P.2d 494 (Alaska 1975); and Breese v. Smith, 501 P.2d 159 (Alaska 1972). The right to be free from unwanted mind-altering chemicals is the type of right that calls for the very highest level protection from state action.

A woman's control of her body, and the choice whether or when to bear children, involves the kind of decision-making that is "necessary for ... civilized life and ordered liberty." Baker, 471 P.2d at 401-02. Our prior decisions support the further conclusion that the right to an abortion is the kind of fundamental right and privilege encompassed within the intention and spirit of Alaska's constitutional language. "[D]ecisions whether to accomplish or prevent conception are among the most private and sensitive." Falcon v. Alaska Pub. Offices Comm'n, 570 P.2d 469, 479 n. 42 (Alaska 1977) (holding that a physician who specialized in contraception and abortion could not be required to disclose the names of his patients); see also Cleveland v. Municipality of Anchorage, 631 P.2d 1073, 1080 (Alaska 1981) (holding that abortion clinic protests cause patients to "suffer emotional distress as a result of appellants' invasion of their privacy during a particularly sensitive period"); Ravin, 537 P.2d at 502 (holding that decisions about contraception involve "significantly personal areas").

We stated in Breese v. Smith, 501 P.2d 159, 169 (Alaska 1972), that "few things [are] more personal than one's body." [FN8] In Breese, a school policy regulating hair length was at issue; the regulation was held unconstitutional because the State failed to show a compelling interest that justified the policy. Id. at 170-72. Surely "few things are more personal" than a woman's control of her body, including the choice of whether and when to have children.

* * *

These rights may be legally constrained only when the constraints are justified by a compelling state interest, and no less restrictive means could advance that interest.

Valley Hosp.supra, 948 P.2d at 968, 969.

This case is complicated by the failure of the Court Visitor to follow this Court's order to her[1] under the statutory mandate in AS 47.30.839(d) to:

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 patient's 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, or oral statements of the patient, including conversations with relatives and friends that are significant persons in the patient's 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.

(emphasis added) As is apparent, the independent capacity assessment instrument mandated by the statute has not been performed, nor any of the other requirements.

Respondent respectfully suggests that the decision on capacity under AS 47.30.839 be held in abeyance pending completion of the statutory requirements.[2] Respondent also respectfully suggests that the court hear testimony from Nancy Groszek, who was listed on Respondent's Witness list, regarding why she does not allow the Court Visitor to talk to her client to determine whether someone else be directed to perform these statutorily mandated duties to aid the court.

Unless, of course, the court determines the state has failed to meet its burden and dismisses the Petition for Forced Medication. Counsel respectfully suggests Respondent's competence has been amply demonstrated already by the Respondent's very cogent and detailed understanding of what the medications do to her and her reasons for refusing medication.[3] Remembering, of course, Dr. Mosher's testimony that the patient really most often does know best.

RESPECTFULLY SUBMITTED this 6th day of March, 2002 (signed March 12, 2003).

 

Law Offices of James B. Gottstein

 

 

 

By:

James B. Gottstein

ABA # 7811100



[1] Counsel assumes such an order was signed. Counsel has never been given a copy of it.

[2] Respondent urges the court to consider Dr. Mosher's clear and qualified expert testimony that Respondent should not be administered the proposed medications after having been off of them so long (whether the court believes Respondent when she testified it has been a year, it has clearly been since at least August). In the face of this testimony, the state's unqualified expert's testimony as to the harm from failing to forcibly medicate strains credulity.

[3] Counsel respectfully suggests, the state's witness's testimony that the Respondent lacks insight into her condition is not credible in light of Respondent's "candid," as the court called it, testimony about her condition in this matter.