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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Myers v. Alaska Psychiatric Institute (06/30/2006) sp-6021

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;
          
          (C)    a  review  of  the  patients  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; 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;
          
          (C)    a  review  of  the  patients  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; 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:

          (c)   .  .  .  If the facility has reason  to
          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;
          
          (C)   has  the  capacity  to  participate  in
          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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