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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Bigley v. Alaska Psychiatric Institute (05/22/2009) sp-6374

Bigley v. Alaska Psychiatric Institute (05/22/2009) sp-6374

     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

WILLIAM S. BIGLEY, )
) Supreme Court No. S- 13116
Appellant, )
) Superior Court No.
v. ) 3AN-08-00493 PR
)
ALASKA PSYCHIATRIC )
INSTITUTE, ) O P I N I O N
)
Appellee. ) No. 6374 - May 22, 2009 )
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Sharon L. Gleason, Judge.

          Appearances:  James B. Gottstein, Law Project
          for  Psychiatric Rights, Inc., Anchorage, for
          Appellant.   Timothy  M.  Twomey,   Assistant
          Attorney  General, Anchorage,  and  Talis  J.
          Colberg,   Attorney  General,   Juneau,   for
          Appellee.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, Carpeneti, and Winfree, Justices.

          CARPENETI, Justice.

I.   INTRODUCTION
          A   psychiatric   patient  committed  to   the   Alaska
Psychiatric Institute (API) challenges the superior courts  order
approving   APIs  petition  for  involuntary  administration   of
psychotropic drugs under AS 47.30.839.  He alleges that the trial
court  violated due process guarantees and that it erred  in  its
findings  that APIs proposed treatment was in his best  interests
and  that  no less intrusive alternative was available.   Because
the patient was subsequently released without treatment, the case
is technically moot, but we decide it because it falls within the
public  interest exception to the mootness doctrine.  We conclude
that, because the patient did not receive adequate notice of  the
nature of the proceedings and access to his medical chart, he was
denied  due  process.   We accordingly issue  declaratory  relief
clarifying these due process requirements.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          This  case  concerns a petition by  API  to  administer
psychotropic medication to an unconsenting adult, William Bigley.
Bigleys  first hospitalization at API was in 1980.  He  exhibited
threatening   and  bizarre  behavior,  delusions,  and   auditory
hallucinations; API diagnosed him with schizophreniform  disorder
and  treated him with anti-psychotic medications.  During another
hospitalization  at API in 1981, he was diagnosed  with  paranoid
schizophrenia.
          Bigley was hospitalized dozens of times in the next two
decades  in  a revolving door pattern of arrest, hospitalization,
release,  and relapse.  In 1996 a court appointed the  Office  of
Public  Advocacy  (OPA)  as  Bigleys conservator  to  manage  his
finances,  and  OPA  became  Bigleys  guardian  later  in   2004.
Throughout  the  years  of his mental illness,  it  appears  that
Bigley generally denied that he had any psychiatric problems.  He
has often quit taking the psychotropic medications prescribed  to
him after his hospitalizations have ended.  Bigley resented being
placed  under  guardianship  and  has  sought  to  terminate  the
guardianship.  Doctors attribute Bigleys resistance to medication
to  his  delusional belief that people are attempting  to  poison
him.   However,  it  is  also  true  that  the  medications  have
sometimes  produced harmful physical side effects,  ranging  from
relatively   minor  (weight  gain,  sedation)  to   serious   and
irreversible (a movement disorder known as tardive dyskinesia).1
          According   to  a  2004  report  by  a  court-appointed
visitor,  Bigleys  mental  condition and  living  conditions  had
recently  taken  an  alarming turn for the worse.   He  had  been
living  in  an  apartment  for four  years,  but  his  angry  and
belligerent  behavior escalated and he was evicted.  He  appeared
underweight.  The visitor thought he was spinning out of  control
and  quite angry, and concluded that he was unable to manage  his
own affairs.
          By  early  2007 Bigley had been in API at least  sixty-
eight  times.2   He had periods where his symptoms were  moderate
enough that he was able to live in assisted living or other forms
of  housing  for short periods.  There were other times  when  he
lived  on the streets.  According to doctors at API, his  periods
of  stability  coincided with his acceptance  of  the  medication
prescribed  to him, while when he stopped taking the medications,
his delusions and disturbing behavior became more intense and  he
became   homeless.   For  a  period  in  2007,  Bigley   received
assistance  with living in the community from a nonprofit  mental
health services provider called CHOICES, Inc.
          In  2008 Bigleys situation was highly unstable.  He had
lost  his most recent housing at a motel and refused another room
his  guardian  found  for  him.  Bigleys guardian  reported  that
          Bigley was not eating or drinking, could not express himself
coherently, did not seem to recognize him, and refused  an  offer
of  money  or  a bus pass.  The guardian said he had  never  seen
Bigley in such a bad state and called the police.
          Meanwhile,   Bigley  was  involved  in  a   series   of
disturbances  at  the First National Bank in  Anchorage.   Bigley
often came into the bank to withdraw  funds.  In recent visits he
had  become disruptive, making hostile and threatening statements
to bank employees and customers.  Employees became frightened, so
the  bank banned him from the premises and hired a security guard
to  deal  with  his  visits.  On April 25 a  police  officer  who
responded  to one of these disturbances took Bigley into  custody
and requested an emergency mental health evaluation.
          At  API Bigley was agitated, angry, and delusional.  He
refused to eat or drink, and had to be housed in locked seclusion
because  his behavior intimidated other residents, some  of  whom
tried  to retaliate physically.  API records say he believed  his
food  and drink were poisoned, that he had God-like powers, spoke
repeatedly of natural and man-made catastrophes, and talked about
blowing  things up.  While the professionals who dealt  with  him
did  not  think  he  was dangerous, they worried  his  aggressive
behavior  could  sooner or later provoke someone  he  encountered
outside the hospital to assault him.
     B.   Proceedings
          1.   Commitment and related proceedings
          On  April  26, 2008, a magistrate issued  an  ex  parte
order  committing Bigley to psychiatric evaluation after  finding
probable  cause that he was mentally ill and that he was  gravely
disabled  or  presented a likelihood of causing serious  harm  to
himself  or others.  The order also appointed the public defender
to represent Bigley.
          On April 28 API petitioned for a thirty-day commitment,
and   also   petitioned   for  court   approval   of   non-crisis
administration of psychotropic medication.  On that same day,  an
attorney,  James  Gottstein of the Law  Project  for  Psychiatric
Rights, e-mailed API and the public defender to inform them  that
he  was  representing Bigley with respect to what he  called  the
forced drugging petition.  In the e-mail he stated the view  that
Bigley had likely acted out as a way to get shelter at API during
cold  weather.  He proposed a plan under which  Bigley  would  be
housed and fed at API.
          The  public defenders office represented Bigley at  the
commitment hearing on April 30, 2008.  Attorney Gottstein filed a
limited  entry  of appearance to represent Bigley  regarding  the
petition  for  court-ordered administration of  medication.   The
public  defender  objected  to Gottsteins  appearing  on  Bigleys
behalf.   The  master  agreed that should  Bigley  be  committed,
Gottstein   could  appear  for  Bigley  during   the   subsequent
involuntary  medication proceedings.  However, until  that  time,
the  master  said  she  would not allow Gottstein  to  appear  as
counsel,  cautioning him that youre not co-counsel and youre  not
to  be  sitting at the table with them or interfering with  their
conduct of the case.
          At  the April 30 hearing, the master heard evidence and
found that Bigley was gravely disabled under AS 47.30.915(7).  On
May 5 the superior court adopted the findings of fact and ordered
Bigley  committed to API for mental health treatment for a period
not to exceed thirty days.
          2.    Proceedings  on  administration  of  psychotropic
          medication
          On  May  7  API moved for an expedited hearing  on  the
medication petition, noting that under AS 47.30.839(e), a hearing
is required on the patients capacity to give or withhold informed
consent  within seventy-two hours of the petition.  On May  9  (a
Friday) the court notified the parties that it was going to  hold
an  expedited  hearing  on  the medication  petition  on  May  12
(Monday).
          At  the  May  12  hearing on the  medication  petition,
Gottstein  objected  to  the expedited  proceedings,  saying  the
hearing was premature because to his knowledge Bigley had not yet
been  committed.  It then emerged that Gottstein had not received
notice  of  the  courts May 5 commitment order.   Gottstein  also
stated  that he had yet to receive Bigleys medical chart  despite
earlier requests to API.  He further argued that the API petition
was  defective  because it did not provide  adequate  information
about  the  proposal  to medicate Bigley, such  as  the  specific
drugs,  dosages,  side effects, and benefits.  He  said  that  he
needed  this  information to adequately prepare for the  hearing.
Gottstein  also proposed that a pretrial or settlement conference
be  held for the purpose of crafting a plan that would allow  for
an  alternative  to  Bigley  taking the  medication.   The  court
decided to proceed with the hearing and allow API to present  its
case,  but  said  that  it  would make  additional  hearing  time
available for Gottstein to respond if necessary.
          Early  in  the proceedings on the medication  petition,
Gottstein  moved  to dismiss, arguing that Bigley  was  competent
earlier  when  he refused to take medications  and  that  a  less
intrusive  alternative existed of providing him  support  in  the
community to help him to function without medications.  Gottstein
also  objected to the compressed schedule for the hearing,  which
he  said  would prevent him from adequately preparing  his  case.
The  court  decided to allow API to proceed with  its  case,  but
asked  Gottstein  how  much additional time  he  needed  for  his
presentation  and set aside additional time on May  14  for  that
purpose.


               a.    Evidence  on Bigleys capacity  for  informed
consent
          The   court-appointed  visitor,   Marie   Ann   Vassar,
testified  she  attempted to meet with  Bigley  that  morning  to
assess   his   competence  and  found  him  extremely   agitated,
delusional,   and  unable  or  unwilling  to  cooperate   in   an
assessment.   She  said  there was  no  evidence  of  an  advance
directive  with regard to psychotropic medication. She also  said
that the guardian supported the use of such medication.
          API  presented  the  testimony of Dr.  Lawrence  Maile,
director  of  APIs  forensic evaluation  unit  and  its  clinical
director.  He testified that he had treated Bigley on a number of
prior  occasions.   He  testified that Bigleys  refusal  to  take
medication was based on the delusional belief that API was trying
to  poison and kill him.  Maile said that Bigley was not  capable
of  having  a  rational  conversation about  the  medications  or
understanding  the  proposed treatment.  Bigleys  counsel  argued
that  on  prior  occasions, Bigley had while competent  expressed
opposition to taking medication and had ceased to take  it  after
being discharged from the hospital, and that the court must abide
by such statements of his preference.
          The  court  concluded that Bigley was not now competent
and  that  there was no evidence of any prior occasions on  which
Bigley  had,  while  competent, stated  an  opposition  to  being
medicated  in the future.  Bigleys own demeanor in the  courtroom
apparently influenced the judges determination that Bigley lacked
capacity.   In her findings, the judge observed that  Bigley  was
quite agitated and maintained a running monologue throughout most
of the court proceedings.
               b.    Evidence  relating  to  the  best  interests
               determination
          With  respect  to  the determination  of  Bigleys  best
interests,  the  main  subjects of  the  evidence  were  (i)  the
benefits  that API claimed the treatment would provide  and  (ii)
the  harms  that  Bigley claimed would result from  administering
psychotropic medication.
                    i.   Evidence  on  benefits of  administering
                         psychotropic drugs
          API proposed to treat Bigley with risperidone, an anti-
psychotic medication that API records indicate had been  part  of
an  effective regimen in the past, and which, at the hearing, API
doctors  said  helped  make Bigley calmer  and  more  capable  of
rational  interaction so that he could function in the community.
Dr. Kahnaz Khari, a staff psychiatrist at API, testified that the
use  of  this kind of medication was required by the standard  of
care  of  psychiatrists in this community.  She said she believed
it was in Bigleys best interests to receive the medications.
          Dr.  Khari said it was likely Bigley would be  injected
since  he  refused to take the oral form of the drug.   She  also
planned to administer a medication from the benzodiazepine family
to calm Bigley down until the risperidone took effect.  Dr. Khari
conceded  that  Bigley  was  not  likely  to  be  compliant  with
medication after release.  She said that as a result API  favored
giving  him  an injection that only has to be administered  every
two weeks: At least that keeps him stable for some short period.
          Dr.   Khari  said  that  she  would  expect  that  with
medication Bigley might remain delusional, but with a lower level
of  intensity and a better ability to think rationally and engage
with  other  people.   She said that in the past,  she  had  seen
Bigley on medication and he was functioning better and living  in
an  assisted living facility. [H]e was able to have more rational
interaction, and he wasnt labile . . . .  So I have seen him in a
higher  quality  of  living standard that he can  have  with  the
medication versus when hes not on medication.  She testified that
without the medication, she was concerned he would not be able to
provide the care for himself, like not eating, not sleeping.
          Dr.  Maile,  the API clinical director, also  testified
that Bigley would benefit from the drugs.  He testified that when
Bigley  took  medications, he was a very different, pleasant  man
who  is not threatening and not at risk to generate the harm from
others by his perpetual threats to them.  Without medication,  he
tends  not  to  take care of himself.  He doesnt eat,  he  doesnt
drink, he doesnt seek appropriate medical care.
          Dr.  Maile  testified that when not on his medications,
Bigley  tended  to threaten people.  For example,  he  said  that
Bigley had recently threatened to slit Mailes throat and kill his
staff  and  their  children.  Dr. Maile  expressed  concern  that
someone  Bigley  encountered on the street might  react  to  such
threats  by  harming  Bigley.  This  concern  that  Bigley  might
provoke  an assault on himself was later reinforced by  testimony
from other witnesses, including one of Bigleys own witnesses.
          The  court-appointed  visitor, Vassar,  also  testified
that  Bigley  had  in the past been helped by psychotropic  drugs
administered  at  API.   She said that previously,  there  was  a
period,  around 2003, 2004, or 2005, during which Bigley complied
with  the medication order as an outpatient, receiving medication
every  two  weeks at API while living on his own in an apartment.
She  thought  this  period of stability had lasted  a  couple  of
years.
          APIs medical director, Dr. Raymond Hopson, gave similar
testimony.   He said that when Bigley agreed to take  medication,
he  was able to have suitable housing.  And he was happy.  He was
not  on the streets, and he was doing well at that time. However,
in  contrast  to  Vassar, Dr. Hopson said this recent  period  of
stability under the influence of the medications had only  lasted
about six months.  Dr. Hopson testified that without medications,
Bigley  was  intermittently homeless and his  dietary  intake  is
questionable and that this affects his overall health.
          Bigleys  witnesses portrayed the proposed treatment  as
just  the  latest  in  a repetitious cycle in  which  Bigley  was
committed and forcibly medicated without any real benefits.   Dr.
Grace  Jackson,  a  psychiatrist called as an expert  by  Bigley,
described the states plan as business as usual.  And that  is  to
continue  sort  of  the  in  and out cycle  of  hospitalizations,
revamping  previous or new treatment plans, and then discharging,
and  then  sort of repeating that process over again as it  might
become   necessary.   API  records  indicate   that   even   with
medications,  Bigley would remain delusional, although  sometimes
calmer.
          Paul  Cornils, a program manager for CHOICES, a  social
services nonprofit that had worked with Bigley, testified that it
was  futile  to medicate Bigley because he would stop taking  the
medication as soon as he was released.  Cornils also said  Bigley
had not been helped by the medication, saying the only effect  he
observed  was  sedation.  He testified that  with  medication,his
delusions  are  as  strong.  His anger and  aggression  is  still
present, he just does not express them as strongly.  He  is  less
disturbing  most  of  the  time . . . I  have  not  noticed  much
difference  except  to  say that his behavior  is  more  socially
acceptable when hes on medication.  Cornils testified that  there
was no need for psychotropic medication and that providing Bigley
with support and assistance would facilitate his return to a more
stable, higher functioning state.
                    ii.  Evidence    on   harmful   effects    of
                         psychotropic medications
          The court heard evidence relating both to the perils of
psychotropic drugs generally, and the specific side effects  such
drugs could have on Bigley himself.
          Dr.  Grace Jackson, the psychiatrist and author  called
by  Bigley,  testified  as an expert witness  about  the  harmful
effects  and lack of effectiveness of anti-psychotic drugs.   Dr.
Jackson  conceded that psychotropic medication is widely accepted
within  the  psychiatric community as an effective treatment  for
schizophrenia.   However, she testified that  the  pharmaceutical
industry  had skewed and suppressed data showing the harms  these
drugs caused.  She testified that the life expectancies of people
taking  drugs  such as risperidone had shortened by  as  much  as
twenty  to twenty-five years, that the drug caused many  patients
to be chemically brain injured, and contributed to an epidemic of
dementia.  She disputed the idea that risperidone was safer  than
the  older  drugs.   She testified these drugs really  should  be
called  chemical lobotomizers rather than antipsychotics  because
they  merely inhibit brain activity to reduce annoying behaviors.
She  testified  that  five  to  twenty  percent  of  patients  on
risperidone will develop tardive dyskinesia symptoms in the first
years  of use.3  She said she did not know if Bigley had  tardive
dyskinesia,  but  that he was at high risk of  it  if  placed  on
risperidone.   She also testified there was a high likelihood  he
is  simply  just  going to die in the next five years  if  he  is
placed back on risperidone.
          In  sharp  contrast  to  the API doctors,  Dr.  Jackson
believed  that Bigleys recent decline in mental health  had  been
caused  not  by  his  refusal to take  medications,  but  to  the
contrary  was the result of damage done by excessive  medication.
Dr.   Jackson   concluded  that  continuing  with  anti-psychotic
medication for Bigley would be very unwise.
          Bigley   also  introduced  an  affidavit  from   Robert
Whitaker,  a  journalist and author, describing evidence  of  the
harmful effects and lack of efficacy of psychotropic drugs.   And
he  introduced  an  affidavit  from  Ronald  Bassman,  Ph.D.,  an
advocate  and  researcher who has been treated with  psychotropic
drugs for his own schizophrenia and now opposes their use.
          Dr. Hopson of API disputed the assertion that treatment
with  anti-psychotics increases the likelihood of chronic  mental
illness.   Dr. Hopson testified that Dr. Jacksons views were  not
in the mainstream of clinical practice in the Anchorage area.  He
said   Alaska  used  treatment  guidelines  known  as  the  Texas
Medication  Algorithm  Project (TMAP)  used  in  about  half  the
states,  which  recommend  anti-psychotic  medications   if   the
symptoms  of schizophrenia interfere with daily functioning.   He
said  it  would be remiss not to treat someone like  Bigley  with
such medications.
          API  did  not dispute that Bigley has experienced  some
          unpleasant side effects from psychotropic drugs in the past.
Records  from  a 1981 hospitalization, when he was being  treated
with  the drug Haldol, report extrapyramidal symptoms (EPS), i.e.
movement    disorders.4    More   recently,   during    a    2007
hospitalization, his medications caused nausea and vomiting.  Dr.
Maile noted that Bigley had complained of some side effects  from
anti-psychotic  medication such as sleepiness  and  weight  gain.
The  visitor  said  Bigley  had complained  of  side  effects  of
erectile dysfunction and sleepiness, as well as a belief that the
injections had altered the shape of his buttocks.  Both Dr. Maile
and  the  visitor  said  they were not  aware  of  Bigley  having
experienced the side effect of tardive dyskenisia.5  However, the
court  later  found, based on grounds that are not  stated,  that
Bigley  did in fact suffer from this condition as the  result  of
years of treatment with anti-psychotic medications.6
          Dr.  Khari  testified  that  the  drug  now  at  issue,
risperidone,   could  have  side  effects   such   as   sedation,
hypertension,  tardive dyskinesia, EPS, and  hyperprolactinemia.7
She  said  risperidone  was a newer kind of  anti-psychotic  with
fewer  side effects, but could have similar side effects  to  the
older drugs at higher doses.  She testified that in Bigleys case,
the  only side effects observed in the past from risperidone were
weight gain and sedation.
               c.   Testimony  on Bigleys proposed less intrusive
                    alternative
          Before  the hearing, Bigleys counsel had filed a Motion
for Less Intrusive Alternative with the court.  In it he proposed
that  Bigley  be allowed to come and go from API  as  he  wishes,
including being given food, good sleeping conditions, laundry and
toiletry items as reasonably requested . . . .  If placed at  API
involuntarily, he proposed that Bigley be allowed out  on  passes
with  escort.  Furthermore, the proposed alternative  called  for
API  to  procure and pay for a reasonably nice apartment that  is
available to Mr. Bigley should he choose to use it.  Finally,  he
proposed that API make sufficient staff available to be with  Mr.
Bigley   to  enable  him  to  be  successful  in  the  community.
(Emphasis in original.)
          In  support  of this motion, Bigley offered  affidavits
from Ronald Bassman, Ph.D., Robert Whitaker, and an affidavit and
testimony  from  Paul Cornils.  The affidavit  from  Whitaker,  a
journalist who writes about science and medicine, criticized  the
efficacy and side effects of psychotropic drugs, and argued  that
recovery  rates  are  superior without them.   The  affidavit  of
Ronald  Bassman  described research supporting  the  efficacy  of
recovery from schizophrenia without drugs.  A report submitted by
Dr.  Jackson  also  described non-drug treatment  strategies  and
summarized studies supporting their efficacy.
          Most  directly  relevant  was  the  affidavit  of  Paul
Cornils  of  CHOICES, because Cornils has worked with Bigley  and
specifically endorsed Bigleys proposed alternative, describing in
some  detail  a  theory  of how Bigley could  be  better  treated
without   psychotropic  drugs.   Cornils   testified   that   his
organization  could  provide case management  and  rehabilitative
services  in the community for someone in Bigleys condition.   He
          thought that Bigley could be supported in the community without
medication  with  the help of a twenty-four hours-a-day  personal
care  attendant, which, over time, might be reduced to less  than
twenty-four hours.
          Although  Cornils objected to APIs use of  coercion  to
treat  Bigley,  he conceded that CHOICES lacked  the  funding  to
provide  the  kind of support Bigley needed.  He  also  testified
that  CHOICES  would not normally work with  a  patient  who  was
refusing    to    take   medication   against   his    physicians
recommendations, which could preclude CHOICES from  working  with
Bigley.  And  he  testified that a psychiatrist  treating  Bigley
without   medications   would  run  a   liability   risk:   [T]he
psychiatrist  would  ultimately  be  held  responsible  for   the
behavior because he is ultimately overseeing the treatment . .  .
.
          APIs Dr. Hopson agreed that the services recommended by
Cornils  would  be valuable and that finding housing  for  Bigley
should be a high priority.  However, he said that the approach of
treating Bigley without medication had been tried multiple  times
and  failed  because  in each instance he was  evicted  from  the
housing  due  to his behavior.  It had become difficult  for  his
guardian to place him anywhere because they know Mr. Bigley,  and
they know . . . the difficulties they are going to encounter.

          3.   Post-hearing proceedings
          On May 19, 2008, the superior court issued its findings
and order granting the petition for approval of administration of
medicine.  The court found that Bigley lacked capacity to provide
or   withhold  informed  consent,  that  the  administration   of
medication  to him would be in his best interests,  and  that  no
less  intrusive  alternative was available to  treat  his  mental
illness.
          Regarding Bigleys best interests, the court found  that
the  proposed  treatment  met the standard  of  medical  care  in
Alaska, and that without it Bigley is unable at the present  time
to  obtain any housing or mental health services outside  of  API
because of his current aggressive and angry behavior.  The  court
found  that when medication had been administered in the past  to
Bigley, his behavior has improved to such an extent that  he  has
been  able  to successfully reside in the community,  albeit  for
short  periods  of  time.   The  court  found  that  Bigley   has
experienced tardive dyskinesia, but that the risk was  less  with
risperidone than with some other medications.
          The  court  did not agree with Bigleys contention  that
there was a less intrusive alternative:
          The   option  that  Mr.  Bigley   simply   be
          permitted  to  come and go  from  API  as  he
          chooses  is  not a realistic alternative  for
          two reasons    first, it is inconsistent with
          APIs  role  as  an  acute care  facility  for
          individuals throughout the state that are  in
          need of acute mental health care, and second,
          the evidence is clear and convincing that Mr.
          Bigley would not avail himself of this option
          even  if it were available to him.  As  such,
          it is not a less intrusive treatment at all.
Furthermore,  the court found that without the administration  of
medication, the evidence is clear and convincing that there  will
not  be  any improvement in Mr. Bigleys mental functioning.   The
court  also noted that providing support services through CHOICES
was not a viable alternative because Cornils of CHOICES testified
that  his organization could not work with a patient who  refused
treatment advice from a physician to receive medication.
          The court approved APIs petition, limiting approval  to
the  specific  drug risperidone in a specified dosage.   However,
its  order was stayed pending an appeal to this court, and during
that  time  Bigleys  period  of commitment  expired  and  he  was
released without receiving the medication.
III. STANDARD OF REVIEW
          We  review  a trial courts factual findings  for  clear
error.8   Factual findings are clearly erroneous if a  review  of
the  entire  record leaves us with a definite and firm conviction
that  a  mistake has been made.9  We will grant especially  great
deference when the trial courts factual findings require weighing
the credibility of witnesses and conflicting oral testimony.10
          We  review a trial courts decision to grant or  deny  a
continuance for abuse of discretion.11
          We apply our independent judgment to the interpretation
of the Alaska Constitution and statutes, adopting the rule of law
that  is  most  persuasive  in light of  precedent,  reason,  and
policy.12


IV.  DISCUSSION
     A.   The  Appeal  Is Moot but We Decide It Under the  Public
          Interest Exception.
          We  generally  refrain from deciding issues  where  the
facts  have  rendered  the legal issues  moot.13   This  case  is
technically moot because Bigley can no longer be medicated  under
the challenged order and therefore cannot obtain any relief if he
prevails.14   The  order permitting API to  medicate  Bigley  was
stayed  pending  an  appeal  to this court.   Bigleys  period  of
commitment  subsequently  expired and  he  was  released  without
receiving the medication.  A claim is moot if it is no  longer  a
present,  live  controversy, and the party  bringing  the  action
would not be entitled to relief, even if it prevails.15
          However, a public interest exception may apply  when  a
potentially moot case raises a matter that is (1) of grave public
concern, (2) likely to recur, and (3) capable of evading review.16
In  Myers  v.  Alaska Psychiatric Institute, we  noted  that  the
involuntary  administration  of psychotropic  medication  by  the
state  is  a  highly intrusive procedure implicating  fundamental
constitutional guarantees of liberty and privacy.17 In that case,
we  found  the  public interest exception to apply  in  order  to
clarify the requirements for protecting constitutional rights  in
such  proceedings.18   For similar reasons, the  public  interest
exception   applies  here.   Bigley  raises  issues   of   public
importance  regarding the application of the Myers standards,  as
          well as questions of due process and interpretation of the
underlying statutory scheme in such proceedings.
          As  in Myers, these issues are likely to recur.19  This
is  true  not  only because other patients are  likely  to  raise
similar claims in the future, but because Bigley himself,  having
already  been  involuntarily committed and  medicated  dozens  of
times in the past,20 is almost certain to face similar proceedings
in  the  future.  Finally, as we noted in Myers, it  is  doubtful
that  an  appeal from a medication order could ever be  completed
within the orders period of effectiveness.21 Thus, the petition in
this case, like the one in Myers, is of a kind that is likely  to
evade  review.22  We conclude that while technically  moot,  this
case raises issues that are justiciable under the public interest
exception.
          B.   It  Was  Error To Deny Bigley Adequate Notice  and
               Opportunity To Prepare His Case.
          Bigley  argues that the court violated his due  process
rights,  claiming he was (1) denied sufficient advance notice  of
the  nature  of the proceedings, (2) not given adequate  time  to
prepare  his  case, and (3) denied timely access to  his  medical
chart ahead of the hearing.  We will examine each of these claims
in  turn,  but  first consider the structure of state  laws  that
govern the administration of psychotropic medication.
          The  state  may  not administer such  medication  to  a
patient  in  a  non-crisis situation unless the patient  provides
informed   consent,   authorizes  the  administration   of   such
medication in an advance directive, or is determined by  a  court
to  lack the capacity to give informed consent.23  In the  latter
circumstance, the state must prove that the patient is unable  to
give  or  withhold  informed  consent  and  prove  by  clear  and
convincing  evidence  that the patient never  previously  made  a
statement  while competent that reliably expressed  a  desire  to
refuse  such  treatment in the future.24  The  governing  statute
provides that this hearing must be held within seventy-two  hours
after  the  filing  of the petition by the  state.25   Under  the
standards  we  announced in Myers, constitutional  guarantees  of
liberty  and privacy further require the court to find  by  clear
and  convincing  evidence that the involuntary administration  of
psychotropic medication is in the best interests of  the  patient
and that no less intrusive alternative treatment is available.26
          The  right  to  refuse  psychotropic  medication  is  a
fundamental   right   protected  by  the   Alaska   Constitutions
guarantees of liberty and privacy.27  We held in Myers that  such
involuntary medication cannot be ordered unless a court finds  by
clear  and convincing evidence that the treatment is in the  best
interests of the patient.28  The Myers court provided guidance on
factors   that  should  be  considered  in  the  best   interests
determination.29  At a minimum, . . . 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.   As  codified   in   AS
47.30.837(d)(2), these items include:30
          (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[.][31]
     
We have stated that these factors are crucial in establishing the
patients best interests,32 which means that their consideration by
the trial court is mandatory.  We will here refer to these as the
Myers  factors.  Our opinion in Myers also identified  a  set  of
factors derived from a ruling of the Supreme Court of Minnesota.33
They are:
          (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.[34]
We  called these Minnesota factors helpful and sensible,35  which
means  that  to  the extent they differ from the  Myers  factors,
their  consideration  by  Alaskan  courts  is  favored  but   not
mandatory.
          Alaska  has  adopted the U.S. Supreme Courts three-part
balancing  test  from Mathews v. Eldridge36 for  determining  the
necessary extent of due process:
          First,  the  private interest  that  will  be
          affected by the official action; second,  the
          risk  of  an  erroneous deprivation  of  such
          interest through the procedures used, and the
          probable  value,  if any,  of  additional  or
          substitute    procedural   safeguards;    and
          finally,  the Governments interest, including
          the  function  involved and  the  fiscal  and
          administrative burdens that the additional or
          substitute   procedural   requirement   would
          entail.[37]
Applying due process principles to notice requirements,  we  have
held  that  the  notice of a hearing must be appropriate  to  the
occasion and reasonably calculated to inform the person  to  whom
it  is  directed of the nature of the proceedings.38  Due process
also  requires that a respondent has a reasonable opportunity  to
prepare.39
          With  this  statutory and constitutional  framework  in
mind, we consider each of Bigleys due process arguments.
          1.   Bigley  had  a  due  process right  to  sufficient
               notice of the nature of the proceedings.
          Bigley argues that he was denied due process because he
did  not  have sufficient notice of which drugs API  proposed  to
administer  to  him,  and was not informed of  the  evidence  API
intended  to present in order to comply with standards  announced
in our Myers ruling.  We agree.
          The petition used by API in this case merely stated its
intent  to  administer psychotropic medication without any  other
information  about the nature of the proposed  treatment  or  its
justification.40  Such notice will generally be  insufficient  to
allow  a  respondent such as Bigley a reasonable  opportunity  to
prepare his case.41
          With respect to this function of providing notice,  the
petition  here is somewhat analogous to a complaint  in  a  civil
case or an indictment in a criminal case.  In civil cases, Alaska
has  a  fairly lenient notice pleading standard.  Alaska Rule  of
Civil  Procedure  8(a) requires that a complaint  include  (1)  a
short  and plain statement of the claim showing that the  pleader
is  entitled  to  relief, and (2) a demand for judgment  for  the
relief  the  pleader  seeks.  We have noted that  [w]e  have  not
construed  this  rule  to  require details  of  evidence  that  a
claimant  will  offer to establish a claim; to the  contrary,  we
have  emphasized that the rule is satisfied by a brief  statement
that  give[s]  the  defendant fair notice of the  claim  and  the
grounds  upon  which  it  rests. 42   In  criminal  cases,  [t]he
fundamental purposes of the indictment are to furnish the accused
with  a  description of the charge against him to enable  him  to
prepare  his  defense.43  Alaska Rule of Criminal Procedure  7(c)
provides  that  [t]he indictment or the information  shall  be  a
plain,  concise and definite written statement of  the  essential
facts constituting the offense charged.
          When the state seeks the involuntary administration  of
psychotropic  medication in a non-crisis situation, it  similarly
must provide a plain, concise, and definite written statement  of
the  facts underlying the petition, including the nature  of  and
reasons  for the proposed treatment, in order that the respondent
may  prepare,  if  he or she desires, to challenge  the  petition
under  the Myers factors.  This should include information  about
the  patients symptoms and diagnosis; the medication to be  used;
          the method of administration; the likely dosage; possible side
effects,  risks and expected benefits; and the risks and benefits
of alternative treatments and nontreatment.
          This  conclusion is supported by the balancing test  of
Mathews  v.  Eldridge. First, the private interest here  is  very
strong,  given  the  highly  intrusive  and  potentially  harmful
effects  of  involuntary  administration of  psychotropic  drugs.
Second, the risk of an erroneous deprivation of individual rights
is  high,  since  the subject of the hearing  is  alleged  to  be
mentally  incompetent  and  will  inevitably  rely  heavily  upon
counsel  who  may have imperfect knowledge concerning  the  case.
The  value of providing such information would be high, since  it
goes to the heart of the constitutional inquiry into the patients
best  interests  under Myers.  The government too  has  a  strong
interest  at stake, namely the expeditious treatment of a  person
alleged  to  be  suffering  a serious mental  illness.   But  the
administrative  burden of providing such  notice  should  not  be
unduly high, since these are all factors the state would need  to
consider  in  reaching  the decision  that  it  is  necessary  to
medicate the patient in the first place.
          In  this  particular case it is not  clear  Bigley  was
actually  prejudiced by the lack of notice.  He had been  through
similar  proceedings with API in the past and knew  enough  about
the  proposed  treatment  to mount a vigorous  challenge  to  the
petition.  Nevertheless, it is possible that his presentation  of
his  case under the Myers best interests factors could have  been
compromised.   Accordingly, we decline to render an opinion  here
about  whether  API  met  its burden  of  showing  by  clear  and
convincing  evidence that the proposed treatment was  in  Bigleys
best  interests.  Nor will we remand for additional  proceedings,
since  this  case  is technically moot.  API no longer  seeks  to
medicate Bigley under the challenged order, so there would be  no
remedy if Bigley could show on remand that the proposed treatment
was not in his best interests under the Myers factors.44
          2.   The  amount  of preparation time did  not  violate
               Bigleys  due  process rights, but  the  court  had
               discretion  to wait longer than seventy-two  hours
               to hold the hearing.
          Bigley  argues  that  an  expedited  hearing  gave  him
inadequate time to prepare his case.  In particular, he says  the
schedule  did not allow time to subpoena Dr. William  Worrall,  a
former  API  physician he needed to testify.   He  also  says  he
lacked  sufficient time to prepare his case with respect  to  the
proposed  less  intrusive alternative.  Although  we  agree  with
Bigley  that  the  trial  court had discretion  to  postpone  the
hearing, we conclude nevertheless that the timing of the  hearing
did  not constitute a due process violation because there  is  no
indication   the   scheduling  of  the  hearing  prejudiced   the
preparation of Bigleys case.
          API  argues that Bigley had ample notice because he was
aware  there was a petition for court-ordered medication  by  the
date of the commitment hearing, April 30, and received notice  of
that  proceeding by April 29.  API also notes that the medication
hearing  spanned  three days, May 12, 14, and 15,  and  that  the
          judge made accommodations to give Bigley extra time to present
his case at his request.
          We  have held that granting or denying a continuance is
within  the  discretion of the trial judge, and we will  consider
the particular facts and circumstances of each individual case to
determine   whether  the  denial  was  so  unreasonable   or   so
prejudicial as to amount to an abuse of discretion.45  Denial of a
motion for continuance constitutes an abuse of discretion when  a
party  has  been  deprived of a substantial  right  or  seriously
prejudiced.46  It is the duty of the trial judge, in the  absence
of  some  weighty  reason to the contrary, to insist  upon  cases
being  heard  and  determined with as  great  promptness  as  the
exigencies of the case will permit.47
          In  this  case there is no indication that the schedule
of  these  proceedings prejudiced Bigley.   APIs  medication  and
commitment  petitions  were  both filed  on  April  28.   Bigleys
attorney  Gottstein  appeared at Bigleys  commitment  hearing  on
April  30, 2008 and filed a limited entry of appearance so as  to
represent   Bigley  regarding  the  petition  for   court-ordered
administration of medication.  On May 5 the court ordered  Bigley
committed.   On May 7 API moved for an expedited hearing  on  the
medication petition.  On May 9 (Friday) the court gave notice  to
the parties that it was going to hold an expedited hearing on the
medication petition on May 12 (Monday).  At the May 12 hearing on
the  medication  petition, Gottstein objected  to  the  expedited
schedule,  saying  the  hearing  was  premature  because  to  his
knowledge  Bigley had not yet been committed.   It  then  emerged
that  Gottstein  had  not received notice of  the  courts  May  5
commitment order.
          We  are  not persuaded by Bigleys argument that he  was
prejudiced  by not having more time to investigate  instances  in
which API funded additional services in the community of the kind
that  Bigley  sought under his less intrusive alternative.   This
was  not  a  disputed  issue:  APIs witnesses  stated  that  they
believed it was valuable to provide supportive services  to  help
Bigley  live in the community, and that they hoped such  services
could  again  be  provided  in the future.   However,  they  also
clearly  believed that successful provision of any such  services
first   required   Bigley   to  be  treated   with   psychotropic
medications,  and that Bigley needed a combination of  medication
and these supportive services.  The judges findings echoed this.
          Viewing  the  issue  in  the due process  framework  of
Mathews  v. Eldridge,48 the court needed to balance the potential
infringement  of  Bigleys rights against the probative  value  of
additional  time  and  the impact of delay  in  relation  to  the
governments  interests.49  The trial judge stated  that  she  was
fully  cognizant  of  the need to give due consideration  to  the
Myers  requirements  and observed that she took  these  types  of
proceedings quite seriously.  While the amount of time needed  to
prepare  for  such  a  hearing may vary with  circumstances,  the
government  will  usually  have a strong  interest  in  a  speedy
decision in order to render treatment to a mentally incapacitated
person.   In  this  case, API had a limited  window  of  time  to
administer  medication during Bigleys thirty-day commitment,  and
          in committing Bigley, the court had found that Bigley was gravely
disabled.  Given the circumstances and the lack of any indication
that  Bigley  was prejudiced by delay, we do not  find  that  the
amount of preparation time violated his due process rights.
          Bigley also argues that the court refused to delay  the
hearing  because it erroneously interpreted the governing statute
as requiring that the hearing be held within seventy-two hours of
the  filing  of  the medication petition by API.  We  agree  with
Bigleys interpretation of the statute on this point.
          Alaska  Statute  47.30.839(e) provides that  the  court
must hold a hearing within seventy-two hours of the filing of the
medication  petition in order to determine the patients  capacity
to  give  or  withhold informed consent . . .  and  the  patients
capacity  to  give or withhold informed consent at  the  time  of
previously expressed wishes regarding medication . . .  .  Bigley
argues  that  the statutory language only explicitly  requires  a
hearing  within  seventy-two hours  on  the  issues  of  informed
consent and capacity.  The statute is silent on the timing of the
constitutionally-mandated inquiry under Myers into  the  patients
best   interests  and  the  availability  of  a  less   intrusive
alternative.  The trial court held that all these matters must be
determined within seventy-two hours of the petition.
          A  literal reading of the statute does not require that
these   inquiries   into  best  interests  and   less   intrusive
alternatives  be  conducted  within  seventy-two  hours  of   the
petition.   This is unsurprising because those requirements  were
imposed  by  the Myers ruling after the statute was  enacted  and
were  very  likely  not contemplated by the legislature  at  all.
Determining  whether  the  treatment  is  in  the  patients  best
interests  and whether less intrusive treatment alternatives  are
available  requires  a  broader inquiry than  merely  determining
capacity  and informed consent.  It seems likely there  would  be
circumstances  in which a seventy-two hour time limit  would  not
give  sufficient time for the respondent to prepare  for  such  a
hearing and thus violate due process.
          The  canon of constitutional avoidance recommends  that
when  the  validity of an act of the [legislature]  is  drawn  in
question,  and  even  if a serious doubt of constitutionality  is
raised,  it  is  a cardinal principle . . . [to] first  ascertain
whether a construction of the statute is fairly possible by which
the  question  may  be  avoided.50  Because  AS  47.30.839(e)  is
ambiguous,  and  because an interpretation that imposes  a  rigid
seventy-two  hour  limit  may in some circumstances  violate  due
process,  we  hold  that  the statute should  be  interpreted  as
offering   the  court  the  discretion  to  conduct  a   separate
proceeding on the constitutional questions required by Myers that
does  not  occur  within  seventy-two  hours  of  the  medication
petition.
          3.   Bigley  had  a  due process right  to  access  his
               medical chart before the hearing.
          Bigley  was  represented by the Public Defender  Agency
during  the  involuntary commitment proceeding, and  by  attorney
Gottstein during the proceedings on the medication petition.  The
public  defender and Bigleys guardian contested this  bifurcation
          of Bigleys representation.  The magistrate at the April 30, 2008
commitment hearing ruled that Gottstein could represent Bigley in
the later medication petition proceeding but could  not serve  as
his  counsel until the commitment proceedings were completed  and
Bigley  was  committed.  According to Gottstein, as a  result  of
this decision, he didnt get access to Bigleys medical chart until
after the hearing started, and then only to a portion of it.
          Attorney  Gottstein  did  not receive  Bigleys  medical
chart before the May 12 hearing, even though he requested it  and
the  court  had earlier approved his representation of Bigley  on
this  matter.   The  chart  should have  been  provided  earlier.
Gottstein   needed access to his medical history to  prepare  for
proceedings   regarding  his  best  interests   and   alternative
treatments  under the Myers standards.  That the  court  did  not
intend  to  proceed on the medication petition until  Bigley  was
committed  does  not lessen Bigleys need for sufficient  time  to
prepare  for that proceeding.  Providing Bigley with the  medical
chart on the day of the hearing was not sufficient to satisfy due
process.
          Again,  this  is a matter that is technically  moot  in
this case, since Bigley was released without the medication order
ever  being  carried out.  However, we hold that a  patient  must
have  access  to  his  medical  and psychiatric  records  once  a
petition  to  involuntarily medicate the patient has been  filed.
Furthermore,  there  is  no  need to wait  until  the  commitment
proceeding  is  completed  to  provide  this  information  to  an
attorney  who  will be representing the patient in  a  subsequent
medication proceeding.
     C.   The   Court  Did  Not  Err  in  Finding  by  Clear  and
          Convincing  Evidence that There Was No  Less  Intrusive
          Alternative to the Ordered Treatment.
          Bigley  argues that because there was a less  intrusive
alternative  to   involuntary medication, it was unconstitutional
to  approve the medication petition.  We conclude that the  trial
court  did  not  err in finding by clear and convincing  evidence
that  the  alternative  proposed by Bigley  was  not  a  feasible
alternative for achieving the states compelling objectives.
          In Myers we held that [w]hen no emergency exists, . . .
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.51 This finding must be supported by clear and
convincing evidence.52 The inquiry into whether there is  a  less
intrusive  alternative is a mixed question of fact and  law.   It
involves,  in  part,  a  balancing  of  legal  rights:  In  cases
involving  the right to privacy, the precise degree to which  the
challenged  legislation must actually further a compelling  state
interest  and  represent  the  least restrictive  alternative  is
determined,  at  least  in part, by the relative  weight  of  the
competing rights and interests.53 In cases such as this, we  must
balance  the  fundamental liberty and privacy  interests  of  the
patient  against the compelling state interest under  its  parens
patriae  authority  to  protect the person  and  property  of  an
individual who lack[s] legal age or capacity. 54
          While this inquiry involves a balancing of legal rights
and interests, it is also a fact-intensive inquiry.  Although the
state cannot intrude on a fundamental right where there is a less
intrusive   alternative,  the  alternative   must   actually   be
available, meaning that it is feasible and would actually satisfy
the  compelling  state interests that justify the proposed  state
action.55  Assessing the feasibility and likely effectiveness of a
proposed  alternative is in large part an evidence-based  factual
inquiry by the trial court.
          As   described  earlier,  Bigley  proposed  as  a  less
intrusive  alternative a plan under which he wouldbe  allowed  to
come  and  go from API as he wishes, including being given  food,
good   sleeping  conditions,  laundry  and  toiletry   items   as
reasonably requested . . . .  If placed at API involuntarily,  he
proposed   that  he  be  allowed  out  on  passes  with   escort.
Furthermore, the proposed alternative called for API  to  procure
and  pay for a reasonably nice apartment that is available to Mr.
Bigley  should he choose it.  Finally, Bigley called for  API  to
make  sufficient staff available to be with Mr. Bigley to  enable
him to be successful in the community.  (Emphasis in original.)
          API  did  not dispute that Bigleys proposed alternative
was  less  intrusive than APIs proposal, which the  judge  termed
highly intrusive.  We agree that Bigleys proposed alternative was
less  intrusive because it did not require Bigley to  take  drugs
that  he  opposes  taking.  However, the court  was  required  to
evaluate  whether Bigleys proposed alternative would be  feasible
and  effective  in promoting the same compelling state  interests
that justified APIs proposed treatment.
          When the state petitions for involuntary administration
of  psychotropic medication, the relevant compelling interest  is
the states parens patriae power, the inherent power and authority
of  the state to protect the person and property of an individual
who  lack[s]  legal age or capacity. 56  The trial  court  fairly
described the state as pursuing the goals of improvement  in  Mr.
Bigleys  mental  functioning and helping him to function  in  the
community.    As   to  the  states  proposed  administration   of
psychotropic medication, the superior court found that
          When medication has been administered in  the
          past to Mr. Bigley, his behavior has improved
          to  such  an extent that he has been able  to
          successfully reside in the community,  albeit
          for  short  periods  of  time.   Without  the
          administration of medication  at  this  time,
          the  evidence  is  clear and convincing  that
          there  will  not  be any improvement  in  Mr.
          Bigleys mental functioning.
The record supported this conclusion.
          Regarding   the   comparative  effectiveness   of   the
medication   approach   and  Bigleys  proposed   less   intrusive
alternative,   Bigleys  witnesses  testified  that   psychotropic
medications were often ineffective, and that non-drug  treatments
would be more effective.  On the other hand, API doctors and  the
visitor  testified that in the past the drugs had  calmed  Bigley
and  made  him more rational and better able to function  in  the
          community. They asserted that Bigley needed the medication in
order  to  be  able  to attend to his basic  survival  needs  for
housing, nutrition, and medical care.
          It  is  true that the record provides ample  reason  to
doubt that APIs proposed treatment will provide permanent or long-
term  gains in Bigleys well-being.  He has already been a patient
at  API  at  least sixty-eight times, and has repeatedly  stopped
taking medication and deteriorated after release.  As the visitor
once  noted,  Bigleys  course  has  been  a  revolving  door   of
hospitalizations,     treatment,     release,     and     further
hospitalization.  The superior court concedes that in  the  past,
the  administration of psychotropic medication has  only  yielded
improvements  in  Bigleys quality of life for  short  periods  of
time.
          Although this is a rather limited endorsement  of  APIs
treatment  plan,  the court concluded that the administration  of
the  medication offered the best prospect for helping  Bigley  to
cooperate with further treatment and obtain further assistance in
gaining  housing and other services.  The court did  not  believe
Bigleys  proposed alternative would achieve these  benefits.   It
noted that without the medication, Bigley will be unable . . . to
obtain . . . mental health services outside of API because of his
current  aggressive and angry behavior.  Therefore, in order  for
Mr.  Bigley  to  be  most likely to achieve  a  less  restrictive
alternative  than his current placement at API,  the  involuntary
administration  of  risperadone is needed.  For  example,  Bigley
argues  his  mental condition would improve if  he  were  offered
housing at API, but the judge concluded that Mr. Bigley would not
avail  himself of this option even if it were available  to  him.
As  such, it is not a less intrusive treatment at all.  The court
noted  that due to his aggressive and angry behavior, Bigley  has
been  evicted from other housing options he was provided  in  the
past.     Furthermore,   the   court   concluded   that   without
administration  of  the  medication, Bigley  was  not  likely  to
achieve a less restrictive alternative than his current placement
at API.
          The court also concluded, after hearing the evidence on
both  sides,  that Bigleys proposed alternative  faced  practical
obstacles to being implemented at all.  Bigley seeks for  API  to
allow  him  to  use its hospital as his place of  residence,  and
provide  him with intensive twenty-four hour a day assistance  to
help  him  cope with his daily needs and keep him out of trouble.
The  court  found this proposal to conflict with APIs mission  as
the states only acute care psychiatric hospital.  The court heard
testimony  from  APIs medical director that it was  incapable  of
housing  patients  like  Bigley  on  a  long-term  basis  without
compromising its primary mission.
          Bigleys proposal also relied on the notion that API  or
some  other  service provider such as CHOICES would offer  Bigley
intensive  case  management  and  assistance  in  the  community,
including twenty-four hour-a-day care to keep him out of trouble.
However,  the  court noted that Paul Cornils of CHOICES  was  not
sure  his organization would be able to assist Bigley even if  it
had  funding  to  do  so, as long as Bigley  were  not  following
treatment advice to receive medication.  API physicians testified
that not prescribing the medication would violate the standard of
care  in  Alaska.   Thus, as Cornils acknowledged,  it  could  be
difficult  to  find  any  physician or social  service  providers
willing   to   treat   Bigley  without  first   medicating   him.
Implementation  of  Bigleys  proposal  would  evidently   require
physicians and service providers to care for Bigley in ways  that
violate their own professional standards, to say nothing  of  the
risks  to  Bigley  if the alternative proved ineffective  as  the
court feared.
          The   superior  court  found  that  Bigleys    proposed
alternative  would  not  likely provide Bigley  with  the  needed
therapeutic  benefits, and that APIs proposed use  of  medication
offered  a  better  chance of improving Bigleys  functioning  and
helping him to address his basic needs.  These findings were  not
clearly  erroneous.  Similarly we do not find the trial court  to
have  clearly  erred  in  finding  the  proposed  less  intrusive
alternative posed serious risks to Bigleys well being,  and  that
there were major practical obstacles to its implementation.
          In   weighing   the  evidence  for  and   against   the
availability of a less intrusive alternative, the trial court  is
required  to find by clear and convincing evidence that  no  less
intrusive alternative is available.  We have described clear  and
convincing   evidence  as  evidence  that  is  greater   than   a
preponderance, but less than proof beyond a reasonable doubt. . .
.  [C]lear  and convincing evidence means and is that  amount  of
evidence  which  produces in the trier of fact a firm  belief  or
conviction  about the existence of a fact to be  proved.  57   We
conclude  that the evidence heard by the trial court  was  strong
enough to meet this standard. We therefore find the court did not
err  in  concluding that there was no less intrusive  alternative
available than APIs proposed treatment.




     D.   We  Are Unable To Determine Whether There Was Clear and
          Convincing Evidence that Administration of Psychotropic
          Medication Was in Bigleys Best Interests.
          The  right  to  refuse  psychotropic  medication  is  a
fundamental   right   protected  by  the   Alaska   Constitutions
guarantees of liberty and privacy.58  We held in Myers that  such
involuntary medication cannot be ordered unless a court finds  by
clear  and convincing evidence that the treatment is in the  best
interests of the patient.59  Bigley asserts that the trial  court
erred  in  making this finding.  We have determined in this  case
that Bigley did not receive adequate notice of the nature of APIs
treatment proposal and was denied access to information needed to
prepare his case under the Myers best interests factors.60  While
it  is  possible  that  these due process violations  constituted
harmless error, it is also possible that they deprived Bigley  of
the opportunity to properly develop his case on best interests.
          Because  API no longer seeks to carry out the treatment
proposed in the disputed petition, the question of best interests
          is moot and no purpose would be served by remanding for new
proceedings  on  it.   Bigley  argues  that  a  remedy  is  still
available  because we could order the lower court to provide  his
proposed less intrusive alternative.  However, the best interests
and  least intrusive alternative inquiries under Myers are  parts
of  a  constitutional  test  of the  validity  of  APIs  proposed
treatment.   If  that Myers inquiry had lead us to conclude  that
APIs  proposed treatment was constitutionally barred, that  would
not  give  rise  to a legal obligation on APIs  part  to  provide
Bigleys  less intrusive alternative.  API could attempt to  offer
some  other  form  of  treatment that  was  not  constitutionally
invalid, or could simply release Bigley without treatment  (which
is  what  happened  in this case).  Accordingly,  we  decline  to
review  the sufficiency of the evidence supporting administration
of psychotropic medication in this case.
V.   CONCLUSIONS
          Because  we  address  this  appeal  under  the   public
interest  exception  to  the mootness  doctrine,  we  issue  only
declaratory  relief.  We hold that in proceedings for involuntary
administration   of   psychotropic   medication   in   non-crisis
situations,  due  process  requires  that  the  petition  provide
sufficient information about the proposed treatment plan for  the
respondent to prepare to challenge the petition under  the  Myers
best  interests factors, should he or she wish  to  do  so.   The
respondent  must  also be given access to his or her  psychiatric
and  medical  records held by the petitioner in  advance  of  the
hearing.  We also hold that AS 47.30.839(e) should be interpreted
to  give courts discretion to wait more than seventy-two hours to
hold   hearings   on  the  best  interests  and  less   intrusive
alternative  inquiries  mandated  by  our  Myers  ruling  if  the
respondent  requests more time.  Finally, we hold  that  in  this
case the superior court did not err in rejecting Bigleys proposed
less intrusive alternative to involuntary medication.

_______________________________
     1      Tardive   dyskinesia   involves   slow,   rhythmical,
repetitive, involuntary movements of the mouth, lips, and tongue;
it  is  permanent, and its symptoms cannot currently be  treated.
Myers  v. Alaska Psychiatric Inst., 138 P.3d 238, 241-42  (Alaska
2006) (quoting Steele v. Hamilton County Cmty. Mental Health Bd.,
736  N.E.2d  10,  17 (Ohio 2000) (quoting Winick,  The  Right  to
Refuse Mental Health Treatment 72-73 (1997))).

     2       Although  API  records  describe  a  February   2007
admission  as Bigleys sixty-eighth admission, an API psychiatrist
testified  at  the May 2008 hearing at issue in  this  case  that
Bigley had been admitted to API seventy-seven times.

     3    See supra note 1.

     4     These  temporary muscular side effects disappear  when
the drug is terminated.  See Myers, 138 P.3d at 241.

     5    See supra note 1.

     6     The  record contains a transcript of a 2007 commitment
proceeding involving Bigley in which Dr. William Worral, a former
API  physician, testified that Bigley had tardive dyskinesia from
years  of  treatment with other psychotropic drugs, but that  the
risk  of  this complication from risperidone was less  than  with
those other drugs.

     7    Hyperprolactinemia means [e]levated levels of prolactin
in  the  blood,  which is a normal physiological reaction  during
lactation,  but  pathological otherwise . . . . Stedmans  Medical
Dictionary 745 (25th ed. 1990).

     8    Vezey v. Green, 171 P.3d 1125, 1128 (Alaska 2007).

     9    Id.

     10    Id. at 1128-29.

     11    Klockenbrink v. State, 472 P.2d 958, 964 (Alaska 1970).

     12    Vezey, 171 P.3d at 1129.

     13     Myers v. Alaska Psychiatric Inst., 138 P.3d 238,  244
(Alaska 2006) (citing Hayes v. Charney, 693 P.2d 831, 834 (Alaska
1985) and Doe v. State, 487 P.2d 47, 53 (Alaska 1971)).

     14     See  infra p. 37 regarding Bigleys claim that  he  is
entitled to a remedy of having this court order provision of  his
proposed less intrusive alternative.

     15     Fairbanks Fire Fighters Assn v. City of Fairbanks, 48
P.3d 1165, 1167 (Alaska 2002).

     16     Myers,  138 P.3d at 244 (quoting Hayes, 693  P.2d  at
834).

     17    Id. at 242, 250.

     18    Id. at 245.

     19    See id. at 244-45.

     20    See supra note 2.

     21     Myers v. Alaska Psychiatric Inst., 138 P.3d 238,  244
(Alaska 2006) .

     22    See id. at 244-45.

     23    AS 47.30.836.

     24    AS 47.30.839(d)-(g).

     25    AS 47.30.839(e).

     26    Myers, 138 P.3d at 249-50.

     27    Id. at 248.

     28    Id. at 239, 252-53.

     29    Id. at 252.

     30    Id.

     31    Id.

     32    Id.

     33     Id.  (citing Price v. Sheppard, 239 N.W.2d  905,  913
(Minn. 1976)).

     34    Id.

     35    Id.

     36    424 U.S. 319, 335 (1976).

     37    Whitesides v. State, Dept of Pub. Safety, Div. of Motor
Vehicles,  20 P.3d 1130, 1135 (Alaska 2001) (citing Mathews,  424
U.S. at 335).

     38     Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371,
380  (Alaska 2007) (quoting Huntley v. N. Carolina State  Bd.  of
Educ., 493 F.2d 1016, 1019 (4th Cir. 1974)).

     39     Id. (quoting French v. Blackburn, 428 F. Supp.  1351,
1357 (M.D.N.C. 1977)).

     40     The  standardized petition form used by  API  has  no
explanation of the basis or goals of the petition, other than the
text  beside  two check boxes that were marked. One checked  part
states,  There  have  been, or it appears  that  there  will  be,
repeated  crisis  situations  requiring  the  immediate  use   of
medication  to  preserve  the  life of,  or  prevent  significant
physical  harm  to, the patient or another person.  The  facility
wishes   to   use   psychotropic  medication  in  future   crisis
situations. The text beside the other selected check box  states,
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.

     41    See Wetherhorn, 156 P.3d at 380.

     42     Valdez Fisheries Dev. Assn v. Alyeska Pipeline  Serv.
Co.,
45 P.3d 657, 673 (Alaska 2002) (internal citations omitted).

     43    Thomas v. State, 522 P.2d 528, 530 (Alaska 1974).

     44     Regarding Bigleys argument that he is entitled to the
remedy  of  ordering provision of the less intrusive alternative,
see infra p. 37.

     45     See A.A. v. State, Dept of Family & Youth Servs., 982
P.2d 256, 259 (Alaska 1999).

     46     Siggelkow v. Siggelkow, 643 P.2d 985, 986-87  (Alaska
1982)  (quoting  Barrett v. Gagnon, 516 P.2d 1202,  1203  (Alaska
1973)).

     47     Id. at 987 (quoting Kalmus v. Kalmus, 230 P.2d 57, 63
(Cal. App. 1951)).

     48    424 U.S. 319, 335 (1976).

     49    Whitesides v. State, Dept of Pub. Safety, Div. of Motor
Vehicles,  20 P.3d 1130, 1135 (Alaska 2001) (citing Mathews,  424
U.S. at 335).

     50    Pub. Citizen v. U.S. Dept of Justice, 491 U.S. 440, 465-
66 (1989) (quoting Crowell v. Benson, 285 U.S. 22, 62 (1932)).

     51     Myers v. Alaska Psychiatric Inst., 138 P.3d 238,  248
(Alaska 2006).

     52    Id. at 254.

     53     State v. Planned Parenthood of Alaska, 171 P.3d  577,
581 (Alaska 2007).

     54    Myers, 138 P.3d at 249 (quoting Pub. Defender Agency v.
Superior  Court, Third Judicial Dist., 534 P.2d 947, 949  (Alaska
1975).

     55     See Treacy v. Municipality of Anchorage, 91 P.3d 252,
267  (Alaska  2004)  (proposed alternative to youth  curfew  that
would limit the restrictions to those youths who had violated the
law  in the past would not meet the ordinances stated purpose  of
protecting juveniles from becoming crime victims themselves); see
also   Planned  Parenthood,  171  P.3d  at  579,  585   (parental
notification  is  an alternative to parental consent  requirement
for minors seeking abortion because it will serve equally well to
promote  the Parental Consent Acts goals of involving parents  in
their minor childrens abortion decisions).

     56     Myers, 138 P.3d at 249 (quoting Pub. Defender Agency,
534 P.2d at 949).

     57     Buster  v.  Gale,  866 P.2d 837,  844  (Alaska  1994)
(quoting  Castellano  v.  Bitkower, 346  N.W.2d  249,  253  (Neb.
1984)).

     58    Myers, 138 P.3d at 246, 248, 251-52.

     59    Id. at 239, 249-50, 252.

     60    See supra pp. 22-25.

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