The court's June 25, 2004, Order requests supplemental briefs on the following issues:
1. Assuming, for the
sake of discussion, that the Alaska Constitution requires a judicial
determination of best interests before the state could be authorized to subject
a committed mental patient to involuntary non-emergency treatment with
psychotropic medication,
a.
What standard of review would the superior court
apply in determining the issue of the patient's best interests?
b.
Would the standard of judicial review change if
clear procedural rules and substantive standards were adopted under AS
47.30.660(b)(14) & (16) to guide the treatment facility in determining
whether the patient's best interest required involuntary administration of psychotropic
medication for purposes of requesting a court order under AS 47.30.839?
2. Under current Alaska law,
is a de novo judicial determination of best
interests generally required before non-emergency medical treatment may be administered to a person who
lacks capacity to give informed consent and has no other alternative form of
consent available? Cf. In the
Matter of C.D.M. v. State, 627 P.2d
607, 611 (Alaska 1981).
As originally formulated, this appeal asserted that before the state may force someone to take psychotropic drugs under AS 47.30.839, in addition to
1. the statutory requirement that the person be found incompetent to decline the medication,
the United States and/or Alaska constitutions require, the State to prove
2. the proposed forced drugging is in the person's best interests,
3. it is the decision the person would make if competent, and
4. there are no less restrictive alternatives.
In responding to Question 2, however, the unconstitutionality of AS 47.30.829 in toto under the equal protection clause becomes apparent because those diagnosed with mental illness have been singled out (classified) to receive much fewer rights than everyone else who is incapacitated to make decisions has under AS 13.26.
It would appear this constitutional violation may be corrected by either incorporating into AS 47.30.829 the rights contained in AS 13.26 or invalidating it altogether. In the latter event, forced psychiatric drugging would devolve to the existing AS 13.26 procedures.
As will be discussed later, even though this issue was not
raised below, nor was it contained in Ms. Myers' Points on Appeal, since it
arises out of the sua sponte
questions of this Court, it is appropriate to address the problem. It also seems deciding the issue can be
deferred until another case raises the issue and decide this appeal on its
original basis.
The court has asked:
1. Assuming, for the
sake of discussion, that the Alaska Constitution requires a judicial
determination of best interests before the state could be authorized to subject
a committed mental patient to involuntary non-emergency treatment with
psychotropic medication,
a. What standard of review would the superior court apply in determining the issue of the patient's best interests?
Under Alaska's current statutory scheme, authorization to subject a committed mental patient to involuntary non-emergency treatment with psychotropic medication (Forced Psychiatric Drugging) is initiated through a Superior Court action.[1] The problem is that the statute, AS 47.30.839, does not include the best interest determination the court's question assumes for the sake of discussion, the Alaska Constitution requires. The only factor the statute looks to is the one of competence and the State agrees a judicial finding of incompetence is a necessary predicate to Forced Psychiatric Drugging.[2]
Under Probate Rule 2(b)2.C., the Superior Court can refer such a proceeding to a master and under Probate Rule 2(a), the presiding judge can appoint a standing master to hear these cases.[3] Objections to the Master's Report can then be made to the Superior Court under Probate Rule 2(f). Probate Rule 2(f)(1) states that in the event of such an objection,
The superior court may permit oral argument, order additional briefing or the taking of further evidence, or grant a hearing de novo.
However, it does not appear this statutory and court rule scheme is what the court had in mind in asking Question 1.a.
Question 1.a., is phrased in a way suggesting the Superior Court is reviewing an administrative proceeding determination, presumably by the hospital. However, as set forth above, there is no administrative determination to be reviewed; the initial proceeding is in the Superior Court.[4]
At oral argument the issue came up in the context of the State's assertion that the courts should not be making any best interest determination at all; that the only question to be "reviewed" by the courts was whether the institutional psychiatrist's determination that medication should be involuntarily administered to someone found incompetent to decline the drugs was the result of "professional judgment." This is a best interest determination that can be reviewed by the Superior Court in the sense of any kind of administrative proceeding any more than there is with respect to competency. Instead, with respect to competency, currently if the institutional psychiatrist decides the person is incompetent to decline the medication,[5] there is the "allegation" by the petitioning institutional psychiatrist that:
Petitioner has reason to believe the patient is incapable of giving or withholding informed consent. The facility wishes to use psychotropic medication in a noncrisis situation.
(Exc. 1).
In one sense this might be considered a determination of incompetency that is reviewed by the Superior Court, but it is done through the filing of a petition, which commences a Superior Court action and is not an appeal in any formal sense. If the Alaska Constitution requires a judicial best interests determination, it seems the same would be true and the Superior Court would have to review the institutional psychiatrist's determination that the forced drugging is in the patient's best interest in the same way as the competency determination, which is through original consideration of the petition.
Another way to look at it is if the Alaska Constitution requires a best interest determination, it reads into AS 47.30.839(a) something like the following:[6]
(a) An evaluation facility or designated
treatment facility may use the procedures described in this section to obtain
court approval of administration of psychotropic medication if
(1) there have been, or it appears that there
will be, repeated crisis situations as described in AS
47.30.838(a)(1) and the facility wishes to use psychotropic
medication in future crisis situations; or
(2) the facility wishes to use psychotropic
medication in a noncrisis situation and has reason to believe the medication is in the patient's best
interest and the patient is incapable of giving informed consent.
The Alaska Constitution would similarly read into, AS 47.30.839(g) as follows:[7]
(g) If the court determines by clear and convincing evidence[8]
that the specific medication proposed by the facility is in the patient's best
interest and 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 that
it has determined is in the patient's best interest. . . .[9]
Ms. Myers recognizes the Court might not normally write an opinion in this way, but hopes it is helpful to present the issue in this way.
In short, the answer to the Court's Question 1.a., is the
Superior Court must conduct a de novo
determination of the institutional psychiatrist's best interest determination
(to the extent the institutional Psychiatrist's opinion leading up to the
filing of the forced medication petition is considered a determination for
which review is being sought).
The Court then asks in Question 1.b:
c.
Would the standard of judicial review change if
clear procedural rules and substantive standards were adopted under AS
47.30.660(b)(14) & (16) to guide the treatment facility in determining
whether the patient's best interest required involuntary administration of
psychotropic medication for purposes of requesting a court order under AS 47.30.839?
At the outset it should mentioned that since AS 47.30.839 does not, by its terms, make a best interest
determination relevant to the forced psychiatric drugging decision, it is
unclear whether regulations could properly be issued that contradict the
statute. However, leaving that aside
and assuming that either such regulations could be adopted or the Legislature
itself might amend AS 47.30.839 to do as the Court posits, it seems under
applicable constitutional principles, in the civil context present here, the
Superior Court must still determine for itself, based on evidence presented to
it, that the proposed psychiatric drugging is in the patient's best
interest. In other words, de novo determination by the Superior
Court would still be required.[10]
In Washington v.
Harper, 494 U.S. 210, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990), the United States Supreme
Court approved a regime allowing forced psychiatric medication of convicted
criminals in prison through an administrative proceeding with the courts left
with a review role. Assuming for the
moment that this decision survives Sell
v. United States, __ U.S. __, 71 USLW
4456, 123 S.Ct. 2174 (2003), a question which will be addressed below, Washington v. Harper was very clear that its holding was limited to
the convicted criminal in prison situation and that persons facing civil forced
drugging were entitled to a much greater level of due process protection.
[T]he proper standard for determining the validity of
a prison regulation claimed to infringe on an inmate's constitutional rights is
to ask whether the regulation is "reasonably related to legitimate
penological interests." This is
true even when the constitutional right claimed to have been infringed is
fundamental, and the State under other circumstances would have been
required to satisfy a more rigorous standard of review.
Id. 494 U.S. at 223, 110 S.Ct. at 1037, emphasis added, citations omitted.
In Washington v. Harper, 494 U.S. at 228, 110 S.Ct at 1040, the court indicated "the primary point of disagreement between the parties is whether due process requires a judicial decisionmaker," which implies that in non-prison contexts there is no disagreement, but that a judicial decision maker is required.
In reaching its
conclusion that a judicial decision maker was not required in the prison
context Washington v. Harper
expressed the view that having medical professionals make the decision might
even be better. 494 U.S., at 231, 110
S.Ct. at 1042. Sell's, core holding, however, is that it is the court that must
make the best interests determination and not the institutional
psychiatrists. This undermines the
entire rationale of Washington v. Harper.
In Sell, 123 S.Ct.
at 2185, the U.S. Supreme Court totally abandoned the concept that doctor knows
best and required judicial determinations, in the first instance, as to medical
best interests.
the court must conclude
that administration of the drugs is medically
appropriate, i.e., in the patient's best medical interest in light of his
medical condition. The specific kinds of
drugs at issue may matter here as elsewhere.
Different kinds of antipsychotic drugs may produce different side
effects and enjoy different levels of success.
Thus, it is an open question whether Washington v. Harper's core holding even still applies in the prison context. It is also clear that under the Alaska Constitution, prisoners have greater due process rights than under the United States Constitution. See e.g., McGinnis v. Stevens, 543 P.2d 1221, 1232, 1236 (Alaska 1975). Of course, this is not a prisoner case and Ms. Myers has the full panoply of due process rights, which includes a de novo judicial determination ("the court must conclude").
While the adoption of "clear procedural rules and substantive standards" to guide the initial determination of whether to seek judicial approval of forced psychiatric drugging would no doubt be beneficial, such procedures and standards can not overcome the patient's right to a de novo judicial determination of best interests to override her fundamental right to be free of unwanted psychiatric drugs.[11]
In thinking about Question 1.b., what might be the minimum "clear procedural rules and substantive standards" to meet constitutional requirements seems useful to explore. First, it seems evident the same factors on which the hospital is required to provide a competent patient information in order to obtain informed consent under AS 47.30.837(d)(2) must be part of any best interests determination:
(2) "informed"
means that the evaluation facility or designated treatment facility has given
the patient all information that is material to the patient's decision to give
or withhold consent, including
(A) an explanation of the patient's 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;
(C) a review of the patient's history,
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;
The United States Supreme Court's analysis in Sell, offers some additional fleshing out of these factors
that it would seem are also required under the Alaska Constitution. With respect
to the prognosis factor, the Alaska Constitution, as Sell, requires that the court conclude forced
psychiatric drugging
(a)
"will significantly further" the State's
interest in forcing the person to take psychiatric drugs,[12] which in this
case, means the persons' prognosis is significantly better with the Court
Ordered Psychiatric Drugging than without it.[13]
(b) "is substantially unlikely to have side effects that will interfere"[14] substantially with the person's ability to achieve and maintain physical and mental health.
Under the Alaska Constitution as under the United States Constitution in Sell, "the specific kinds of drugs at issue may matter here as elsewhere. Different kinds of antipsychotic drugs may produce different side effects and enjoy different levels of success."[15]
With respect to the less restrictive alternative factor,[16]
the Alaska Constitution presumably requires at least as much as the United
States Constitution does under Sell that "the court
must find that any alternative, less intrusive treatments are unlikely to
achieve substantially the same results."
While the Superior Court must make these determinations in the
first instance before forced drugging may occur, the administrative decision to
seek such authorization should be based on the same factors.
Finally, the court asked:
2. Under current Alaska law, is a de novo judicial determination of best interests generally required before non-emergency medical treatment may be administered to a person who lacks capacity to give informed consent and has no other alternative form of consent available? Cf. In the Matter of C.D.M. v. State, 627 P.2d 607, 611 (Alaska 1981)
In attempting to answer this, it seems necessary to analyze
the normal means for authorizing treatment for an incapacitated person. The paradigm is to create an alternative form
of consent. First, however, perhaps it
should be noted it is black-letter law that the failure to obtain consent for
medical treatment is normally a battery.
Trombley v. Starr-Wood Cardiac
Group, PC, 3 P.3d 916, 924 (Alaska 2000) (citing
the Restatement of Torts and Prosser
& Keeton on the Law of Torts).[17]
AS 13.26, sets forth the procedures generally required before medical treatment may be administered to a person who lacks capacity to give informed consent.[18] The basic scheme is if someone lacks capacity generally or as to specific matters, a full or partial guardian is appointed to give or withhold such consent. AS 13.26.090 et. seq. AS 13.26.105 sets forth the requirements of a petition which, at §(b)(5), requires, "the particular type and duration of appointment and the protection and assistance being sought." AS 13.26.116 sets forth the authority of the Superior Court in granting a guardianship which, at §(b), includes:
(b) The guardianship plan shall
specify the authority that the guardian has with regard to
(1) medical care for the ward's
physical condition;
(2)
mental health treatment that the guardian considers to be in the ward's best
interests; . . .
AS 13.26.150, sets forth the powers and duties of guardians, specifically excluding the right to have someone committed to a mental hospital outside of the normal commitment process and prohibiting consent to sterilization. AS 13.26.140 provides an expedited mechanism when needed.
The C.D.M. case cited by the Court in Question 2 involves a situation in which the guardian does not have the power to consent and resort to the court for authorization was necessary before the non-emergency medical procedure could be performed.[19] It is also very clear that for sterilization at least, a de novo judicial determination of best interests under very strict protections is required. There, at 627 P.2d 610-11, citing to Strunk v. Strunk, 445 S.W.2d 145 (Ky. App. 1969), this Court made clear that the justification for state action under the parens patriae doctrine is protection of the person's interest (and estate).
This Court then goes on to discuss the minimum due process standards applicable:
Basic notions of
procedural due process require that the incompetent be afforded a full judicial
hearing at which medical testimony is presented and the incompetent, through a
guardian ad litem, is allowed to present proof and cross-examine witnesses.
627 P.2d at 612.
The court must assure itself that a comprehensive medical, psychological, and social evaluation is made of the incompetent. If it is necessary in meeting this standard that independent advice be obtained then the court should, on its own motion, obtain such advice. . . .
In short, the proponents of sterilization must show that there is no less restrictive alternative to the proposed operation. . . .
[T]he court must examine closely the motivation behind the petition. The court should give careful consideration to whether the petition is motivated by genuine concern for the best interests of the incompetent rather than concern for the petitioner's own or the public's convenience.
The above-stated
guidelines are not intended to be an all-inclusive list of the various factors
which the superior court should consider before ruling on a petition for
sterilization. Rather, they set forth what we believe to be the minimum
inquiries necessary to protect the constitutional rights of the incompetent.
The need for additional inquiries and the weight to be given to each factor
will vary with the particular facts and circumstances of each case.
627 P.2d at 613
It is no doubt true that "the awesome power to deprive a human being of his or her fundamental right to bear or beget offspring,"[20] played significantly in this formulation, but at the same time it is also true that the power to force someone to take debilitating, mind-altering, life shortening, and even potentially fatal, psychotropic drugs rises very close to, if not equal to the interests at stake in sterilization.[21]
It is also quite clear that guardians have the power to authorize all but the most important medical treatments, with sterilization and mental commitments specifically deleted from such power. This is a comprehensive statutory scheme under AS 13.26 providing a mechanism to authorize medical procedures for incapacitated individuals, including expedited procedures where necessary.[22] Certain medical decisions are prohibited from being assigned to guardians, such as sterilization, mental commitment and psychosurgery[23] but it appears in all other instances, there is a mechanism for an "alternative form of consent" as asked in Question 2. The exceptions to guardianship authority all seem to be of such a fundamental and important nature that de novo court determination of best interests is indeed required.
Thus, it seems in final answer to Question 2, if there is no
mechanism to obtain an alternate form of consent, a de novo determination by the Superior Court is necessary to
authorize medical treatment for an incapacitated person.
The analysis in the preceding section inescapably raises the question of the constitutional propriety under the equal protection clause of AS 47.30.839 stripping from people who have been diagnosed with mental illness the protections all other people have under the guardianship statutes before their decision making authority can be removed. In other words, AS 13.26 provides a comprehensive set of procedures and rights that must be followed before someone's decision making authority can be taken away. This includes the right to a guardian ad litem,[24] the right to an independent expert,[25] the right to a jury trial as to capacity at least,[26] and a number of other protections a person facing forced psychiatric drugging is not given under AS 47.30.839. Particularly troubling is the much higher burden for competence a respondent must meet under AS 47.30.837(d) than everyone else has to meet under AS 13.26.108.
In fact, AS 13.26 specifically contemplates that authorization for mental health treatment, other than commitment to a mental hospital, for someone unable to provide informed consent will utilize the guardianship proceedings.[27] For example, the visitor's report required under AS 13.26.108(c)(3) is to include:
(c) an evaluation
of the respondent's need for mental health treatment and whether there is a
substantial probability that available treatment will significantly improve the
respondent's mental condition.
AS 13.26.116(b)(2) specifically provides that the required guardianship plan to be contained in the guardianship order, "shall specify the authority that the guardian has with regard to . . . (2) mental health treatment that the guardian considers to be in the ward's best interests."
Where, as here, a fundamental interest is involved, under federal equal protection analysis, "when a statute infringes upon a fundamental interest the state must show that the statutory classification furthers a compelling state interest, yet utilizes the least restrictive means available." Patrick v. Lynden Transport, Inc., 765 P.2d 1375, 1377 (Alaska 1988), citing to Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 1331, 22 L.Ed.2d 600, 615 (1969).
In analyzing equal protection cases under the Alaska Constitution, this court has adopted a
a three-step,
sliding-scale test that places a progressively greater or lesser burden on the
state, depending on the importance of the individual right affected by the
disputed classification and the nature of the governmental interests at
stake: first, we determine the weight of
the individual interest impaired by the classification; second, we examine the importance of the
purposes underlying the government's action;
and third, we evaluate the means employed to further those goals to
determine the closeness of the means-to-end fit.
Malabed
v. North Slope Borough, 70 P.3d 416, 420-1 (Alaska 2003).
Of course, the United States Constitution sets the floor for
constitutional rights and this Court has held that the Alaska Constitution's
equal protection clause contains greater protections than under the federal
constitution. Malabed,
70.P.3d at 420.
Under this standard, AS 47.30.839 appears to be a patent violation of the equal protection clause. First, the interest the state has advanced for force drugging people is to make them able to function independently in the community.[28] This itself is not a compelling interest justifying the governmental intrusion; the only legitimate compelling interests are that the medication is in the person's best interest[29] and it is the decision the person would make if competent.
Second, and more directly related to equal protection analysis, there does not appear to be any justification for a separate classification that strips away from people diagnosed with mental illness the procedural and substantive protections afforded everyone else. This is a violation of equal protection.[30]
In order to remedy this violation it seems AS 47.30.839 must be invalidated in its entirety or the
protections afforded everyone else in AS 13.26 must be provided in the AS 47.30.839
procedure.
In responding to the Court's Question 2 regarding procedures
for medical treatment of incapacitated persons it has become clear that AS
47.30.839 is a violation of the equal protection clause.[31] This equal protection problem also implicates
both prongs Questions 1 because equal protection demands those diagnosed with
mental illness be given the same rights as everyone else.
Under Crittell v.
Bingo, 83 P.3d 532, 536 (Alaska 2004), this Court recently
re-iterated that issues not raised below may still be decided by this court
where deciding the issues correct "plain error or do not depend on new or
controverted facts, are closely related to the appellant's arguments at trial,
and could have been gleaned from the pleadings." Here, the unconstitutionality of AS 47.30.839 is manifest and the decision does not depend
on new or controverted facts. It is,
however, a stretch to say the issue is closely related to arguments at trial or
could have been gleaned from the pleadings.
Nevertheless, since it is the Court's own Question and request for
additional briefing that brought the issue forward, albeit indirectly, and it
is strictly a legal question, the normal basis for not addressing questions not
raised below seems inapplicable. This
seems confirmed by Keturi v. Keturi,
84 P.3d 408, 415 (Alaska 2004), in which this Court made
clear that where an issue is raised sua
sponte by the Court it can be decided.
Should the Court, however, decide to leave this issue for development in a new case where the issue is raised below directly, the answer to Question 1.a., clearly seems to be that a de novo trial is required in the sense that the Superior Court is determining the factual issue of best interest based on testimony and other evidence presented directly to it. With respect to Question 1.b., while "clear procedural rules and substantive standards" are no doubt desirable and would aid the Superior Court in many ways, under Sell, at least, it seems the Superior Court "must determine" for itself in the first instance the question of best interests. With respect to Question 2, it seems that yes, a de novo judicial determination of best interests generally is required before non-emergency medical treatment may be administered to a person who lacks capacity to give informed consent and has no other alternative form of consent available.
For the foregoing reasons, Ms. Myers respectfully urges the Court to declare AS 47.30.839 unconstitutional because it violates the equal protection clause and either invalidate it in its entirety or incorporate the protections afforded everyone else in AS 13.26 into it.
In addition, whether the Court rules on the equal protection issue or not, in addition to the relief requested in Ms. Myers Opening and Reply briefs, she respectfully requests the court hold, the Superior Court must determine for itself, based on evidence presented to it, whether the proposed forced psychiatric drugging is in the person's best interest. In doing so, Ms. Myers believes it will be helpful to the Superior Court if this Court issues guidance about such a best interest determination. Ms. Myers respectfully suggests such guidance could be something like the following
Before ordering involuntary medication, the court must first examine closely the motivation behind the petition. The court should give careful consideration to whether the petition is motivated by genuine concern for the best interests of the respondent rather than concern for the petitioner's own or the public's convenience. The only proper consideration is the best interest of the respondent.
In order to approve the involuntary administration of
psychotropic medication the Superior Court must determine such medication will significantly further the respondent's
interests, which means the respondent's life will be significantly better with
the involuntary administration of the medication than without it. In arriving at such a determination,
the Superior Court must assure itself it has been given all information that is
material to such determination, including
(A) an explanation of the patient's 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;
(C) a review of the patient's history,
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;
This determination must be made on a specific drug by drug
basis. Different kinds of antipsychotic
drugs may produce different side effects and enjoy different levels of success.
Ms. Myers appreciates the opportunity to submit this brief in response to the Court's Questions.
RESPECTFULLY SUBMITTED this ____ day of July, 2004.
LAW PROJECT FOR PSYCHIATRIC RIGHTS, INC
By: __________________________
James B. Gottstein, Esq.
[1] AS 47.30.839.
[2] February 11, 2004, oral argument.
[3] It is also perhaps an open question whether a Master is constitutionally permitted to deprive a citizen of her fundamental right to be free of the forcible administration of psychiatric drugging in the way allowed by the Probate Rules. Particularly troubling is Probate Rule 2(b)(3)(D), which provides the Master's determination to allow forced psychiatric drugging to be effective pending Superior Court review. While a stay is possible under Probate Rule 2(f)(2) such a stay is not automatic. It would thus appear these dangerous drugs are administered during the pendency of a stay request. As set forth in Ms. Myers' Opening Brief at pp 3-8, the Excerpt of Record at Exc. 19A-102, 113-221, 249-273 and the testimony of Loren Mosher, M.D., at TR. 174-80 and Grace E. Jackson M.D., at Tr 188-191, not only do these drugs have extremely serious side effects, they cause many people to have psychotic relapses. It is therefore not an innocuous event at all to start someone on these drugs because as Dr. Mosher testified at TR 175-6 "those drugs are extraordinarily difficult to get off of."
[4] Although it may and, at least in the Third Judicial District, uniformly is referred to a Master.
[5] In this case, the psychiatrist testified in his deposition that if someone agreed to take the medication, unless tantamount to catatonic, they would be determined competent to consent, but if a patient didn't want to take the medication, in over 95% of the cases, he would seek a court order that the person was incompetent to decline the medication. (Exc. 148-155).
[6] Inserted text bold faced and double underlined.
[7] Inserted text bold faced and double underlined, deletions double strikethrough.
[8] Ms. Myers does not believe there should be any disagreement that the proper standard of proof is clear and convincing, but if the State should dispute it in its brief, Ms. Myers will address the issue in her reply brief.
[9]
The State and the Superior Court below have interpreted AS 47.30.839 to allow the State
to forcibly drug the person with any non-experimental drug of its choosing once
the forced drugging order has been entered.
Ms. Myers pointed out below, even before Sell v.
United States, __ U.S. __, 71 USLW
4456, 123 S.Ct. 2174 (2003), that the Superior Court had to approve the
specific medication for which forced drugging was sought "because it
necessarily requires an analysis of each medication requested to be
administered against the Respondent's desires." [Exc. 11]
However, the Superior Court agreed with the State a forced drugging
order allowed the State to force Ms. Myers to take whatever medication(s) they
wanted to. [Exc. 311] Under Sell, 123 S.Ct.
at 2185, though, it is very clear the best interest determination must be made
on a drug by drug basis.
[10] This in no way suggests it would not be desirable for the State to adopt such regulations or the Legislature amend the statute.
[11] Sell, of course,
is based on the United States Constitution, but the Alaska Constitution
presumably provides at least as much protection. Certain
[12] Sell, 123 S.Ct. at 2184.
[13]
At oral argument the state asserted the "ability to function
independently" was the state's compelling interest in forcing a person to
take psychiatric drugs. Ms. Myers
responded and states again here that this is an impermissible state interest;
that medical best interests and determining what decision the person would make
if competent are the only constitutionally permitted justifications for the
"substantial interference with [a] person's liberty" the
"forcible injection of medication into a nonconsenting person's body
represents" under the Parens Patriae
Docrine involved here.
[14] 123 S.Ct. at 2185.
[15] 123 S.Ct. at 2185.
[16] The State conceded at oral argument the existence of no less restrictive alternative is also required under the Alaska Constitution if the right to be free from involuntary psychiatric drugging is a fundamental right,
[17] But see Korman v. Mallin, 858 P.2d 1145, 1150 (Alaska 1993), citing to authority for the proposition there is an exception "where the patient is incapable of giving his consent by reason of mental disability or infancy." AS 11.81.430(a)(5) eliminating criminal liability for such a battery is clearly limited to emergency situations. AS 11.81.430(a)(1) could conceivably be read to authorize medical treatment, but that doesn't seem to be the intent; it has been interpreted as applying to corporal punishment or similar uses of force.
[18] AS 13.26.141 sets forth emergency powers under the guardianship statutes.
[19] AS 13.26.150 was repealed and re-enacted later in the same year C.D.M., was decided. A copy of the statute as it existed when C.D.M was decided is included as Appendix A-1 and §14 of Ch. 83 SLA 1981 repealing and re-enacting AS 13.26.150 is included in Appendix A-2 for the Court's convenience. The 1981 law specifically excludes sterilization from the powers a guardian may exercise, while the pre-1981 law was silent on this issue.
[20] 627 P.3d at 610.
[21] See, discussion and cases cited in Ms.
Myers Opening and Reply briefs.
[22] AS 13.26.140
[23] AS 13.26.150(e)
[24] AS
13.26.112
[25] AS 13.26.109(c)&(d)
[26] AS 13.26.113
[27]
It is interesting to note that the United States Supreme Court in last year's Sell decision cited to AS 13.26.105(a) and AS 13.26.116(b) as the statutory
authorization to force someone to submit to unwanted psychiatric drugs under
Alaska law. 123 S. Ct. at 2185.
[28] Counsel's statement in oral argument, February 11, 2004.
[29]
At oral argument, the State's counsel asserted institutional psychiatrists
decide whether to forcibly drug someone based on best interests, but it clearly
is not one of the statutory criteria nor, as indicated, does the state assert
best interests is the state's interest in forcibly drugging people. More likely, and consistent with what the
State's counsel said at oral argument, getting people out of the hospital
quickly is really the State's objective.
It seems particularly applicable here to take heed of this court's
caution in C.D.M. that, "The court should give careful
consideration to whether the petition is motivated by genuine concern for the
best interests of the incompetent rather than concern for the petitioner's own
or the public's convenience." This
is a well known problem in forced psychiatric drugging cases, as described in
Ms. Myers' Opening and Reply briefs.
[30] There is also little question that AS 47.30.839 is a violation of the federal Americans with Disabilities Act under last August's decision by the Second Circuit in Hargrave v. Vermont, 340 F.3d 27 (CA2, 2003).
[31] As well as a violation of the Americans with Disabilities Act.