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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In Re Necessity for the Hospitalization of Jeffrey E. (7/27/2012) sp-6701

In Re Necessity for the Hospitalization of Jeffrey E. (7/27/2012) sp-6701

        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, email 

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                  THE SUPREME COURT OF THE STATE OF ALASKA 



In the Matter of the Necessity                        )    Supreme Court No. S-14419 

for the Hospitalization of:                           ) 

                                                      )    Superior Court No. 3AN-11-01224 PR 

JEFFREY E.                                            ) 

                                                      )    O P I N I O N 

                                                       ) 

                                                      )    No. 6701 - July 27, 2012 

                                                      ) 



                 Appeal from the Superior Court of the State of Alaska, Third 

                 Judicial District, Anchorage, John Suddock, Judge. 



                 Appearances:       Marjorie Allard, Assistant Public Defender, 

                 and    Quinlan      Steiner,   Public    Defender,      Anchorage,       for 

                 Appellant.      R.   Scott    Taylor,    Senior    Assistant     Attorney 

                 General, Anchorage, and John J. Burns, Attorney General, 

                 Juneau, for State of Alaska. 



                 Before:      Carpeneti,      Chief    Justice,    Fabe,    Winfree,     and 

                 Stowers, Justices. 



                 WINFREE, Justice. 



I.      INTRODUCTION 



                 A respondent appeals his 30-day involuntary commitment order, arguing 



the evidence was insufficient to support the superior court's conclusion that he was 



gravely     disabled.     Because      the  superior    court   did   not  err  in  concluding      that  the 



respondent   was   gravely   disabled   under   the   required   clear   and   convincing   evidence 



standard, we affirm the 30-day commitment order. 


----------------------- Page 2-----------------------

II.     FACTS AND PROCEEDINGS 

                In June 2011 Jeffrey E.1 was 20 years old, had recently lost his job due to 



behavioral difficulties, was in the process of divorcing, and was staying with family 



members.  Jeffrey's family members became concerned about his behavior and  brought 



him   to   a   hospital. Jeffrey's   family   reported   Jeffrey   had   not   been   eating,   drinking, 



sleeping, or performing any self-care for several days - he had more or less remained 



seated in a catatonic state,2  to the point of urinating on himself.           Jeffrey's family also 



reported Jeffrey had made comments   about others being able to read his mind, had 



responded aggressively to challenges, and had a family history of mental illness. 



                Jeffrey remained in the emergency room overnight for observation.  He 



spent most of the night sitting awake in a chair and refusing medication, food, and drink. 



Because   Jeffrey was uncommunicative, hospital staff could not determine if he was 



actively psychotic.      Although unable to articulate how he would behave differently, 



Jeffrey wanted to go home and "denied thoughts or plans of self harm or harm to others." 



Hospital staff concluded Jeffrey "may be experiencing symptoms of psychosis but it is 



difficult to assess" and that "[h]e could benefit from further assessment and stabilization 



. . .  as it is possible he is experiencing psychosis." 



                The next day hospital staff filed a Petition for Initiation of Involuntary 



        1       We use a pseudonym to protect the respondent's privacy. 



        2       "Catatonia" is defined as a "phase of schizophrenia in which the patient is 



unresponsive . . . [a] tendency to assume and remain in a fixed posture and inability to 

move     or  talk  are  characteristics    of  this  phase."   TABER 'S    CYCLOPEDIC        MEDICAL 

DICTIONARY 305 (16th ed. 1989). 



                                                 -2-                                            6701
 


----------------------- Page 3-----------------------

Commitment and an Application for Examination.3                   The superior court granted an ex 



parte    order   requiring    Jeffrey's   transport    to  Alaska    Psychiatric    Institute   (API)   for 



examination.       A   few   days   later   API   staff   filed   a   petition   for   an   involuntary   30-day 



commitment, and the court held a hearing on this petition.4 



                 Dr. Kennedy Cosgrove, an API psychiatrist, testified at the hearing about 



his diagnosis of Jeffrey's mental illness - specifically psychotic disorder not otherwise 



classified. This diagnosis was based on behavior described by Jeffrey's family members 



and the hospital emergency room staff, as well as on Dr. Cosgrove's own observations 



at API.  Dr. Cosgrove stated that Jeffrey's catatonia had "resolved rather quickly" after 



he took medication in the emergency room.               Dr. Cosgrove stated Jeffrey had resumed 



adequate eating and drinking, and that he had stopped responding to internal stimuli - 



auditory hallucinations and delusional thoughts - by the day before the hearing. 



                 Dr.   Cosgrove   was   concerned   that   Jeffrey   lacked   insight   into   his   prior 



condition.      Jeffrey    had   told  Dr.   Cosgrove     "that   he  [had]   no   problem     other   than 



daydreaming and drinking alcohol and [did] not see anything wrong with him[self]." 



Dr. Cosgrove also was concerned that Jeffrey's lack of insight would result in Jeffery 



        3        See   AS     47.30.700     (regarding     initiation   of  involuntary      commitment 



proceedings   based   on   probable   cause   to   believe   person   is   mentally   ill   and   gravely 

disabled or likely to cause harm to self or others); AS 47.30.705 (establishing procedures 

for emergency evaluation detention); AS 47.30.710(b) (authorizing hospitalization if a 

mental health professional "has reason to believe that the respondent is (1) mentally ill 

and that condition causes the respondent to be gravely disabled or to present a likelihood 

of serious harm to self or others, and (2) is in need of care or treatment," and requiring 

application   for   an   ex   parte   order   if   no   judicial   order   has   been   obtained   under   AS 

47.30.700). 



        4        See AS 47.30.730-.735 (setting forth requirements for 30-day commitment 



petition and 30-day commitment hearing). 



                                                    -3-                                              6701
 


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discontinuing his medication, causing a return of his prior symptoms.                   Dr. Cosgrove 



testified to the serious consequences that would result if Jeffrey went off medication: 



"Catatonia returns often very quickly when someone stops the [medication] for it," and 



could return "in a matter of hours, certainly within a day."            Dr. Cosgrove testified that 



Jeffrey's mental illness would worsen if not treated, and that the catatonia caused Jeffrey 



mental and physical distress. 



                Jeffrey   also   testified   at   the   hearing. He   described   his   condition   upon 



arriving at the hospital as "positive," described his issues as "daydreaming" or "anxiety," 



and thought his stay at API was "kind of helpful."             He said that if released, he would 



return to his brother's house, or a local homeless shelter if his brother would not let him 



return.   He planned to contact his prior employer about re-employment and had enough 



savings to tide him over in the meantime.           He stated he had been given the telephone 



number of a mental health clinician, whom he planned to contact on release.                    He also 



stated he planned to keep taking his medication if the clinician recommended it. 



                But Jeffrey also answered "no" when asked if he was "going to follow up 



for treatment for mental illness."       He stated that he would be "furthering the process of 



getting medication for anxiety," but did not "really notice that much of a difference" 



once he began medication for catatonia. Jeffrey later stated he "possibly" would "consult 



with another physician regarding the need for ongoing medication." 



                 The superior court found that:   (1) Jeffrey was mentally ill; (2) Jeffrey was 



gravely disabled; and (3) no less restrictive facility than API would adequately protect 



Jeffrey.   The court noted Jeffrey was a "functioning human being" at the time of the 



hearing, but was still vulnerable.   The court found Jeffrey would not continue to take his 



medication on his own and that there were "catastrophic consequences of ceasing to take 



the medication." 



                                                  -4-                                             6701
 


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                Jeffrey appeals the superior court's finding that he was gravely disabled. 



He   does   not   appeal   the   mental   illness   finding   or   the   finding   that   API   was   the   least 



restrictive   alternative.  Although   Jeffrey   was   released   from   API   shortly   after   being 



committed and the issue he raises is moot under the standard established in Wetherhorn 



v. Alaska Psychiatric Institute,5  because this was Jeffrey's first involuntary commitment 



we consider his appeal under the collateral consequences exception to mootness recently 



adopted in In re Hospitalization of Joan K .6 



III.    STANDARD OF REVIEW 



                "We review fact findings in involuntary commitment proceedings for clear 



error, reversing only if we are left with a 'definite and firm conviction that a mistake has 



been made.' "7    We apply de novo review to related legal questions, "including whether 



the fact findings meet the statutory standards for involuntary commitment."8 



IV.     DISCUSSION 



                Before the superior court can involuntarily commit a person it must find, 



by clear and convincing evidence, that the person is "mentally ill and as a result is likely 



        5       156 P.3d 371, 380 (Alaska 2007) (holding an evidentiary-based challenge 



to an expired 30-day commitment order is moot and will not be reviewed absent an 

exception to the mootness doctrine). 



        6       273 P.3d 594, 598 (Alaska 2012) (concluding "that there are sufficient 



general collateral consequences, without the need for a particularized showing, to apply 

the [collateral consequences exception to mootness] in an otherwise-moot appeal from 

a person's first involuntary commitment order"). 



        7       Id. at 596 (quoting In re Hospitalization of Tracy C. , 249 P.3d 1085, 1089 



(Alaska 2011)). 



        8       Id . (citing E.P. v. Alaska Psychiatric Inst. , 205 P.3d 1101, 1106 (Alaska 



2009)). 



                                                 -5-                                            6701
 


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to cause harm to [self] or others or is gravely disabled."9  Clear and convincing evidence 



is "that amount of evidence which produces . . . a firm belief or conviction about the 



existence of a fact to be proved."10        Gravely disabled is defined in AS 47.30.915(7)(B): 



                 "gravely disabled" means a condition in which a person as a 

                 result of mental illness 

                         . . . . 



                 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   person's   previous   ability   to   function 

                 independently. 



                 We have noted that this subsection of the statute "is concerned with a more 



passive condition, whereby the respondent is so unable to function that he or she cannot 



exist   safely   outside   an   institutional   framework   due   to   an   inability   to   respond   to   the 



essential demands of daily life."11          To preserve the constitutionality of the statute, we 



have interpreted "distress" in AS 47.30.915(7)(B) as referring                  "to a level of incapacity 



that prevents the person in question from being able to live safely outside of a controlled 



environment."12       In sum, for Jeffrey to be committed to API there had to be evidence 



producing a "firm belief or conviction" that he would be unable to exist "safely outside 



of a controlled environment." 



        9        AS 47.30.735(c). 



         10      In re Johnstone , 2 P.3d 1226, 1234-35 (Alaska 2000) (quoting Buster v. 



Gale, 866 P.2d 837, 844 (Alaska 1994)). 



         11      Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371, 376 (Alaska 2007) 



(citing In re LaBelle , 728 P.2d 138, 144 (Wash. 1986)). 



         12      Id. at 378. 



                                                     -6-                                               6701
 


----------------------- Page 7-----------------------

                 Jeffrey argues the superior court erred in finding him gravely disabled at 



the time of the commitment hearing.  He concedes he was gravely disabled when he was 



admitted to the emergency room days before the commitment hearing.  But he contends 



that to   be committed, he had   to   be gravely   disabled   at the time   of   the   commitment 



hearing.13    He maintains the superior court contradicted itself by acknowledging he had 



"crossed the line" back to being a functioning human being but finding he was gravely 



disabled. 



                 The State counters that the superior court made an "express finding" that 



Jeffrey was gravely disabled at the time of the commitment hearing and that this finding 



is   entitled   to   "especially   great   deference"   because   it   required   the   superior   court   to 



evaluate conflicting oral testimony and witness credibility.14               The State adds that recent 



behavior   is   relevant   to   whether   a   respondent   is   gravely   disabled   at   the   time   of   the 



hearing, and Jeffrey had very recently been catatonic.15 



                 Jeffrey responds that the superior court's factual findings are reviewed for 



clear   error   but   the   ultimate   legal   conclusion   of   whether   those   facts   meet   the   legal 



standard of gravely disabled is a question of law reviewed de novo.  He contends that a 



lack of insight into his mental condition and a "realistic probability" that he would stop 



         13      See In re Hospitalization of Tracy C., 249 P.3d 1085, 1093 (Alaska 2011) 



("We therefore conclude that although the superior court may only grant an involuntary 

commitment   petition   if   it   finds   by   clear   and   convincing   evidence   that   the   patient   is 

mentally ill and likely to harm herself or others or is gravely disabled at the time of the 

commitment   hearing,   when   making   that   determination   the   court   may              consider   the 

patient's recent behavior and condition as well as the patient's symptoms on the day of 

the hearing."). 



         14      See id. at 1089. 



         15      See id. at 1093. 



                                                     -7-                                               6701
 


----------------------- Page 8-----------------------

taking his medication provide an insufficient basis to find him gravely disabled. 



                 Regarding the standard of review, Jeffrey is correct; factual findings are 



reviewed for clear error, but the ultimate legal conclusion of whether those facts meet the 



"gravely disabled" criteria is reviewed de novo.16           Jeffrey and the State are each partially 



correct in reading Tracy C. - a respondent must be gravely disabled at the time of the 



commitment   hearing,   but   recent   behavior   is   probative   of   whether   the   respondent   is 



gravely disabled at the time of the hearing.17           And we add that the statutory subsection 



is forward-looking with its concern that the respondent "will, if not treated, suffer or 



continue to suffer" distress as a result of the respondent's mental illness.18 



                 Dr. Cosgrove testified that in his opinion, Jeffrey "would probably go off 



his    medication     and    get   back    into   the  same     situation    rather   quickly"     without 



hospitalization.  Dr. Cosgrove based his prediction on Jeffrey's lack of insight into both 



his condition and his need for treatment.            He stated it was "not clear" to him whether 



Jeffrey would be able to obtain food and drink if released.  Dr. Cosgrove also expressed 



"very   significant   concerns"   about   Jeffrey's   ability   to   survive   in   the   community   if 



released. 



                 The superior court explained its decision as follows: 



                 The standard is clear and convincing evidence of a high level 

                 of   distress,   impairing   the   person   from   being   able   to   live 

                 safely outside of a controlled environment.            On these facts, 

                what you have is a gentleman who is - sounds like a very 

                nice person.  He is articulate and well spoken.  He is two days 



        16      In the Matter of the Necessity for the Hospitalization of Joan K ., 273 P.3d 



594, 596 (Alaska 2012). 



        17      In re Tracy C. , 249 P.3d at 1091. 



        18      AS 47.30.915(7)(B). 



                                                    -8-                                              6701
 


----------------------- Page 9-----------------------

                 or   so   past   his   hunger   strike,   and   he   doesn't   know   -   he 

                 doesn't realize at an intellectual level that he was on a hunger 

                 strike.   In other words, he has no appreciation of what his 

                 prior condition was, how much trouble he was in.                 What's 

                 changed is that he's taken some medication that has brought 

                 him out of frank catatonia where he was sitting on a couch 

                 and if - without an intervention, he would literally pee on 

                 himself, not eating, not drinking, and not able to lift himself 

                 by his own bootstraps out of that condition. He's now moved 

                 to a better condition, which is just across   the line back to 

                 being   a functioning   human   being.        But he's so vulnerable 

                 right now, he's so fragile because he is just across the line. 

                 And     it's  obvious     that   he   has   no   insight   that   it's  the 

                 medication that has returned him to a state of lucidity able to 

                 seemingly   talk   in   a   way   that   superficially   sounds   to   have 

                 sufficient normalcy to put him out in the community.  But 

                 what would clearly happen at this moment if he went out into 

                 the community with his level of insight, he's not going to 

                 take that medication. . . .  And the catastrophic consequences 

                 of ceasing to take the medication are so high that he simply 

                 needs more time in the shelter of API to get himself together. 

                 He    may    cross   that   line   into   having  acceptable   judgment 

                 within a very short time.   I agree . . . that his release may well 

                 come      well   before    30   days    are  up.    But    it  would     be 

                 irresponsible for me to say he's at that point three days in. 



                 Jeffrey    is  incorrect   that  the   superior    court's   findings    and   conclusion 



contradict its own comments that Jeffrey had crossed the line back to being functional. 



Jeffrey may have been "functioning" at the time of the hearing, but this does not preclude 



him from also being "gravely disabled."               As noted above, the statutory definition of 



gravely disabled is forward-looking - even  if Jeffrey were not suffering from distress 



at the exact time of the hearing, he still could be gravely disabled at that time if he would 



suffer distress in the near future as a result of his mental illness.  It is noteworthy that the 



trial court limited the commitment to   30 days or "until a moment when, in the best 



judgment of [Jeffrey's] treaters there, [Jeffrey had] recovered enough resiliency, enough 



                                                    -9-                                               6701
 


----------------------- Page 10-----------------------

judgment, that [he would] take the medication reliably that's going to protect [him] from 



returning to a condition that [he didn't] recognize [he] had fallen into." 



                 Because   there   is   no   dispute   that   Jeffrey's   catatonia   made   him   gravely 



disabled, or that catatonia would reoccur shortly after the cessation of medication, the 



outcome of this appeal hinges on whether the superior court's finding that Jeffrey would 



not take his medication in the future is clearly erroneous. "We will grant especially great 



deference   when   the   trial   court's   factual   findings   require   weighing   the   credibility   of 

witnesses   and   conflicting   oral   testimony."19     Jeffrey's   own   testimony   at   the   hearing 



supports   Dr.   Cosgrove's   conclusion   that   Jeffrey   lacked   insight   into   his   illness   and 



Jeffrey's equivocal and contradictory testimony about whether he would continue taking 



his medication does not directly contradict Dr. Cosgrove's conclusion that Jeffrey would 



not take his medication in the future. The finding that Jeffrey's existing condition would 



cause him to not take his medication in the near future is not clearly erroneous.  We 



therefore affirm the conclusion that Jeffrey was gravely disabled. 



V.      CONCLUSION 



                 We AFFIRM the superior court's 30-day commitment order. 



        19      In re Tracy C. , 249 P.3d at 1089 (quoting Bigley v. Alaska Psychiatric Inst. , 



208 P.3d 168, 178 (Alaska 2009)). 



                                                   -10-                                               6701 

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