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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 Jacob S. (11/18/2016) sp-7133

In Re Necessity for the Hospitalization of Jacob S. (11/18/2016) sp-7133, 384 P3d 758

           Notice:   This opinion is subject to correction before publication in the P                       ACIFIC  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                                    )  

for  the  Hospitalization  of                                          )      Supreme  Court  Nos.  S-15847/15868  

                                                                       )  

               

JACOB S.                                                                                                                                  

                                                                       )      Superior Court No. 3AN-14-03156 PR  

                                                                       )  

                                                                                                   

                                                                       )      O P I N I O N  

                                                                       )  

                                                                                                                           

                                                                       )     No. 7133 - November  18, 2016  



                      A                                                                                           

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

                                                                                                       

                      Judicial District, Anchorage, Patrick J. McKay, Judge.  



                                                                                                       

                      Appearances: Meg Allison Zaletel, Zaletel Law, Anchorage,  

                                                                                                             

                      for Appellant. Dario Borghesan, Assistant Attorney General,  

                                                                                         

                      Anchorage,  and  Craig  W.  Richards,  Attorney  General,  

                                           

                      Juneau, for Appellee.  



                                                                                                                   

                      Before:          Stowers,  Chief  Justice,  Winfree,  Maassen,  and  

                                    

                      Bolger, Justices.  



                                            

                      WINFREE, Justice.  



I.         INTRODUCTION  



                                                                                                                            

                      The respondent in involuntary commitment and medication proceedings  



                                                                                                                                          

appeals a number of issues related to findings that he was mentally ill and posed a risk  



                                                                                                                                            

of harm to others.  The superior court ordered both 30- and 90-day commitments - the  



                                                                                                                                           

latter following a jury trial.  The court also entered medication orders after finding the  



                                                                                       

respondent unable to make mental health treatment decisions.  


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

                                      Primary among the issues the respondent raises are two legal questions.                                                                                                                                           



First, when a respondent requests a jury trial on a 90-day commitment petition, who -                                                                                                                                                         



between the jury and the court - decides the factual underpinning for and the ultimate                                                                                                                                        



question of least restrictive alternative to commitment?                                                                                                      We conclude that this decision                                 



making is for the court.                                            Second, AS 47.30.837(d)(1) sets out a four-part test - joined                                                                                                  



by the conjunctive "and" - for determining whether a respondent is competent to make                                                                                                                                                  



mental health treatment decisions; can a respondent be found incompetent if one part is                                                                                                                                                         



not met?                   We conclude that the answer is "yes."                                                       



                                      With   these   conclusions  in  mind,   we   resolve   the   issues   raised   by   the  



respondent in the State's favor.                                                           We therefore affirm the superior court's commitment                                             



and medication orders.                        



II.                FACTS AND PROCEEDINGS                     



                                                             1  

                                      Jacob S.                                                                                                                                                                                       

                                                                 was hospitalized for a mental health evaluation in January 2015,  



                                                                                                                                                                                                                                    

after  his  domestic  partner  filed  an  involuntary  commitment  petition  because  Jacob  



                                                                                                                                                                                                                                     

stopped taking his medication, she observed him experiencing paranoid delusions about  



                                                                                                                                                                                                                                        

their neighbor, and she thought his delusions had caused himto act violently toward their  



                                                                                                                                                                                                                                         

neighbor. After an evaluation Dr. David Mack at Alaska Psychiatric Institute (API) filed  



                           

a 30-day commitment petition asserting that Jacob had a mental illness and was likely  



                                                                                                                                                                                                                                              

to cause harm to himself or others.   Dr. Mack also petitioned for court approval to  



                                                                                                                                                                                                                          

administer psychotropic medication because Jacob lacked capacity to give informed  



                          

consent.  



                                                                                                                                                                                                                            

                                      A magistrate judge held a hearing on the petitions.  Both Jacob's neighbor  



                                                                                                                                                                                                                                          

and Jacob's partner testified telephonically.  Jacob's neighbor testified that Jacob had  



                                                                                                                                                                                                                                         

filed a restraining order against her in November 2014 alleging that she was stalking him,  



                   1  

                                                                                                                                                                                                      

                                      A pseudonym has been used to protect the respondent's privacy.  



                                                                                                                       -2-                                                                                                                        7133  


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

                                                                                                                               

had broken into his house, and had been tasing him with a "stop gun." The neighbor also  



                                                                                                                              

testified  to  her  suspicion  that  Jacob  had  thrown  a  rock  through  her  window  and  



                                                                                             

attempted to set fire to her house with a "Molotov cocktail" on two separate occasions  



                                 

the previous month.  



                                                                                                                               

                     Jacob's  partner  testified  that  she  recognized  several  bottles  from  the  



                                                                                                                               

"Molotov cocktail" incident as having come from their house.  She also testified that  



                                                                                                                                 

Jacob had been doing "strange things" and then did not remember what he had done, for  



                                                                                                                                

example connecting an electric welder to their house's back door. He had unplugged the  



                                                                                                                          

telephone then denied doing so.  He layered towels, cardboard, newspaper, and pillows  



                                                                                                                                      

over the house's windows and couch to protect himself from the neighbor's "tasing."  



                                                                                                                            

                     Dr. Mack testified about Jacob's delusional disorder diagnosis.  Dr. Mack  



                                                                                                                                  

was concerned that Jacob's strange behavior concerning his neighbor was connected to  



                                                                                       

his fixed delusions, but Dr. Mack thought psychotropic medication might soften those  



                                                                                                                               

delusions. Jacob refused to acknowledge he was suffering from delusional disorder, and  



                                                        

he had not yet received medication.  



                                                                                                                           

                     Finding that Jacob suffered froma mental illness and posed a risk of danger  



                                                                                                              

to others, the magistrate judge recommended the 30-day commitment.  The magistrate  



                                                                                                                               

judge then addressed the medication petition.  The court-appointed visitor testified that  



                                                                                                                                 

although Jacob "demonstrate[d] rational thought process in regards to medications," his  



                                                                                                                                 

inability to recognize his mental illness meant "he would not have the capacity based on  



                                                                                                                             

that  particular  reason  alone."                 Dr.  Mack  stated  that  treatment  methods  other  than  



                                                                                                                

psychotropic medication would not be successful and that Jacob could meaningfully  



                                                                                                                     

participate in treatment decisions only if he recognized his disorder.  The magistrate  



                                                                                                                                  

judge found that Jacob lacked capacity to give informed consent, that medication was in  



                                                                                                                        

Jacob's best interests, and that no less restrictive alternative was available. The superior  



                                                                                                     

court approved and adopted these findings and issued the orders.  



                                                                -3-                                                         7133
  


----------------------- Page 4-----------------------

                            Dr. Mack filed another petition in February for a 90-day commitment order                                                                    



and an accompanying petition to continue administration of psychotropic medication.                                                                                                  

                                                           2    Much of the trial testimony concerned Jacob's mental  

Jacob requested a jury trial.                                                                                                                                        



health and actions prior to his original commitment and was repetitious of that given at  

                                                                                                                                                                                



the 30-day commitment hearing. Jacob's brother testified that he was willing to provide  

                                                                                                                                                                    



housing if Jacob were released from API.  Because Jacob's brother's residence is only  

                                                                                                                                                                          



two blocks away from Jacob's, the State questioned whether that placement would  

                                                                                                                                                                      



protect Jacob's neighbor.  Jacob's brother responded that he would monitor Jacob and  

                                                                                                                                                                            



prevent him from returning there. Timothy Mannen, a board-certified psychiatric nurse  

                                                                                                                                                                         



practitioner at API, testified that someone with Jacob's delusions would not simply get  

                                                                                                                                                                             



better over time and that merely moving Jacob to a new residence would not alleviate the  

                                                                                                                                                                              



delusions.                Mannen  stressed  that  although  treatments  other  than  commitment  and  

                                                                                                                                                                           



medication, like therapy, are available, it is difficult to convince a person suffering from  

                                                                                                                                                                          



delusional disorder to "restructure or realize that what . . . they are thinking that is fixed  

                                                                                                                                                                         



and false and disordered is not true."  

                                                                              



                            The jury found that Jacob was mentally ill; that as a result he was likely to  

                                                                                                                                                                                



cause harm to others; and that he was advised of, but did not accept, voluntary treatment.  

                                                                                                                                                                                     



The superior court then held a further evidentiary hearing to decide whether a less  

                                                                                                                                                                           



restrictive alternative to commitment existed and whether involuntary medication was  

                                                                                                                          



in Jacob's best interests. Jacob testified, expressing a willingness to take medication and  

                                                                                                                                                                            



participate in therapy if he were released to a family member's home.  Mannen testified  

                                                                                                                                                                   



that placement with a family member was not appropriate because Jacob's response to  

                                                                                                                                                                                



the medication was not yet "robust" enough.  The court visitor who had interviewed  

                                                                                                                                                           



              2             AS47.30.745(c)entitles a90-day                                      commitment petition respondent to ajury   



trial on request.  In contrast no similar right is provided under AS 47.30.735(b)(1)-(9)                                           

for a 30-day commitment petition.                      



                                                                                       -4-                                                                               7133
  


----------------------- Page 5-----------------------

Jacob a week earlier testified that he did not have the capacity to participate in his                                                                                                                                                                                                                     



treatment planning. Thecourt                                                                              determined that untilJacob's                                                                           delusionssoftened,                                                   releasing  



him to                     a   family   member   would   not   adequately   protect  the public.                                                                                                                                                             The   court   also  



 expressed doubt that Jacob would take his medication if released from API.                                                                                                                                                                                                      The court   



 determined that no less restrictive alternative to commitment at API existed at that time,                                                                                                                                                                                                          



 and that medication was in Jacob's best interests.                                                                                             



                                                Jacob appeals, arguing that allowing telephonic testimony at the 30-day                                                                                                                                                                      



hearing violated his due process rights and was an abuse of discretion and that the 30-                                                      



 and 90-day commitment orders and the medication orders were erroneously issued. The                                                                                                                                                                                                                    



 State contends that the superior court's rulings were correct and that Jacob's challenges                                                                                                                                                                                       



to the medication orders are moot.                                                                                            



III.                     STANDARDS OF REVIEW                                                    



                                                We review a trial court's decision to allow telephonic testimony for abuse                                                                                                                                                                        

                                                3        "We will find an abuse of discretion when the decision on review is  

 of discretion.                                                                                                                                                                                                                                                                                                 

manifestly unreasonable."4  

                                                                                                                                                                                                                                                                               

                                                                                                    "Factual findings in involuntary commitment or medication  



                                                                                                                                                                                                                                                                                                      

proceedings are reviewed for clear error," and we reverse those findings only if we have  

                                                                                                                                                                                                                             5   Whether those findings  

                                                                                                                                                                                                                                                                                         

 a "definite and firm conviction that a mistake has been made." 



meet the involuntary commitment and medication statutory requirements is a question  



                        3                       See Richard B. v. State, Dep't of Health & Soc. Servs., Div. of Family &                                                                                                                                                                                       



 Youth Servs.                                 , 71 P.3d 811, 817 (Alaska 2003) (citing                                                                                                             Midgett v. Cook Inlet Pre-Trial                                                  

Facility, 53 P.3d 1105, 1109 (Alaska 2002)).                                                                                                                        



                        4                       Ranes & Shine, LLC v. MacDonald Miller Alaska, Inc., 355 P.3d 503, 508  

                                                                                                                                                                                                                                                                                                         

 (Alaska 2015) (citing Tufco, Inc. v. Pac. Envtl. Corp., 113 P.3d 668, 671 (Alaska 2005)).  

                                                                                                                                                                                                                                                                                                                          



                        5                        Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371, 375 (Alaska 2007)  

                                                                                                                                                                                                                                                                                                 

 (citing Martin N. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs.,  

                                                                                                                                                                                                                                                                                               

 79 P.3d 50, 53 (Alaska 2003)).  

                                                                                     



                                                                                                                                                       -5-                                                                                                                                           7133
  


----------------------- Page 6-----------------------

                                                      6  

 of law we review de novo.                               "We apply our independent judgment to the interpretation                                   



 of both the Alaska Constitution and statutes, adopting 'the rule of law that is most                                                                           

                                                                                                                     7     We  use  our  independent  

persuasive  in  light  of  precedent,  reason,  and  policy.'                                                                                

                                                                                                                   " 

judgment to determine if a pending controversy is moot. 8  

                                                                                                       



 IV.          DISCUSSION  



                                                                                     

              A.           The 30-Day Commitment Order  



                                                                                                                                                           

                            1.           It was not error to allow telephonic testimony at the hearing.  



                                                                                                                                                                          

                           Jacob asserts that it was a violation of his due process rights to allow his  



                                                                                                                                                                      

partner and his neighbor to testify telephonically at the 30-day hearing because their  



                                                                                                                                                                            

 credibility was a central issue.   "A civil litigant's right to confront witnesses is . . .  



                                                                                                                                                                            

 founded upon notions of procedural due process," and the question we must decide is  



                                                                                                                                                                           

 "whether due process, in this case, necessitates that" Jacob "be afforded the right to  



                                                                                                                          9  

                                                                                                                                                              

 [confront]" the witnesses in person rather than telephonically.                                                             Alaska uses the Mathews  



                                                                                                                                                                       

 v.  Eldridge  three-part  balancing  test  "for  determining  the  necessary  extent  of  due  



                                                                           10  

                                                                                         

process" in the commitment context.                                             We consider:  



              6            Id.  



              7            Id.   (footnotes omitted) (quoting                                   Guin v. Ha              , 591 P.2d 1281, 1284 n.6                        



 (Alaska 1979)) (first citing                          Grinols v. State               , 74 P.3d 889, 891 (Alaska 2003); then citing                                 

Holderness v. State Farm Fire & Cas. Co.                                              , 24 P.3d 1235, 1237 (Alaska 2001)).                         



              8            In re Tracy C., 249 P.3d 1085, 1089 (Alaska 2011) (quoting Clark v. State,  

                                                                                                                                                                     

Dep't of Corr., 156 P.3d 384, 386 (Alaska 2007)).  

                                                                                                        



              9            See In re A.S.W., 834 P.2d 801, 805 (Alaska 1992) (citing Thorne v. State,  

                                                                                                                                                                    

Dep't of Pub. Safety, 774 P.2d 1326, 1332 (Alaska 1989)) (determining whether due  

                                                                                                                                                                        

process required civil litigant be given the right to confront witness against him).  

                                                                                                                                                                      



              10           Bigley v. Alaska Psychiatric Inst., 208 P.3d 168, 181 (Alaska 2009) (citing  

                                                                                                                                                                   

Mathews v. Eldridge, 424 U.S. 319, 335 (1976)).  

                                                                                    



                                                                                     -6-                                                                             7133
  


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

                                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   Government's   interest,   including   the   function  

                                involved and the fiscal and administrative burdens that the                                                                           

                                additional    or    substitute    procedural    requirement    would  

                                entail.[11]  



                                Involuntary commitment imposes a serious limitation on an individual's  

                                                                                                                                                                                

liberty interest,12  and Jacob's insistence that witnesses testify in person thus implicates  

                                                                                                                                                                                     



a private interest of significant weight.  

                                                                          



                                We have previously examined the risk of erroneous deprivation of a right  

                                                                                                                                                                                                 



and stated that "[a]lthough the due process analysis is a flexible and contextual one  

                                                                                                                                                                                                    



focusing on the interest and not the outcome, there must be some actual prejudice under  

                                                                                                                                                                                                

the second prong and not merely the 'theoretical possibility of prejudice.' "13  This means  

                                                                                                                                                                                              



Jacob must show that he "was likely to have achieved a more favorable outcome" had  

                                                                                                                                  

the witnesses testified in person.14                                                Jacob's attorney cross-examined the witnesses, but  

                                                                                                                            



chose not to attack their credibility during thecross-examination. When Jacob's attorney  

                                                                                                                                                                                          



objected to the telephonic testimony, the magistrate judge responded that he would "be  

                                                                                                                                                                                                     



                11             Id.   (quoting   Whitesides   v.   State,   Dep't   of   Pub.   Safety,   Div.   of   Motor  



 Vehicles, 20 P.3d 1130, 1135 (Alaska 2001) (setting out                                                                              Mathews  balancing test)).                                     



                12              Wetherhorn,  156  P.3d  at 375-76 (noting  that involuntary commitment  

                                                                                                                                                                              

represents a "massive curtailment of liberty" (quoting Humphrey v. Cady, 405 U.S. 504,  

                                                                                                                                                                                                   

509 (1972))).  

                                  



                13             Paula E. v. State, Dep't of Health &Soc. Servs., Office of Children's Servs.,  

                                                                                                                                                                                              

276 P.3d 422, 433 (Alaska 2012) (footnote omitted) (quoting D.M. v. State, Div. of  

                                                                                                                                                                                                        

Family & Youth Servs., 995 P.2d 205, 212 (Alaska 2000)).  

                                                                                                                                             



                14             Id.  



                                                                                                   -7-                                                                                           7133
  


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

 careful" about credibility issues.                                           Because Jacob's right to cross-examine the witnesses                                                  



was protected and he made no express attempt to bring their credibility into question, we                                                                                                           



 cannot easily conclude that a different result would have been reached had the witnesses                                                                                            



 testified in person.      



                                The   State's   asserted   interest   is   in   providing   evidence   quickly   so   that  



 "potentially dangerous people will [not] be released from the hospital without treatment                                                                                            



 that protects them and the community."                                                        Involuntary commitment hearings must occur                                                    

                                                                                                                          15 requiring flexibility in gathering  

within 72 hours of the respondent's initial detention,                                                                                                                               



 evidence to meet the deadline. We recognize the significant weight of the State's interest  

                                                                                                                                                                                          



 in protecting respondents and the community by providing evidence within that short  

                                                                                                                                                                                               



 time period.  

             



                                Because the low erroneous deprivation risk and the State's great health and  

                                                                                                                                                                                                  



public safety interest tip the scale in the State's favor - even balanced against Jacob's  

                                                                                                                                                                                         



 significant  liberty  interest  - we  conclude  that  telephonic  testimony  at  the  30-day  

                                                                                                                                                                                         



hearing did not deprive Jacob of his due process rights.  

                                                                                                                   



                                In addition to his due process argument, Jacob contends that the magistrate  

                                                                                                                                                                                   



judge abused his discretion because no good cause existed for the witnesses to appear  

                                                                                                                                                                                           



 telephonically.  Courts have discretion to allow a witness to appear telephonically at a  

                                                                                                   



hearing  "for  good  cause  and  in  the  absence  of  substantial  prejudice  to  opposing  

                                                                                                                                                                                    

parties."16               The State expressed doubt that the witnesses could arrive at the hearing in a  

                                                                                                                                                                                                        



 timely manner, in part because one witness is wheelchair bound; both witnesses also had  

                                                                                                                                                                                                  



protective orders in place against Jacob.  The record supports that there was good cause  

                                                                                                                                                                                              



 for  allowing  telephonic  testimony  and  Jacob  has  failed  to  establish  any  resulting  

                                                                                                                                                                                     



                15              AS 47.30.725(b).   



                16  

                                                                          

                                Alaska R. Civ. P. 99.  



                                                                                                  -8-                                                                                                  7133  


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

prejudice.   We therefore conclude that the magistrate judge did not abuse his discretion                                                                                           



in allowing the telephonic testimony.                          



                               2.              The 30-day order was not erroneously issued                                                                      .  



                               At the conclusion of a 30-day commitment hearing a court "may commit   



the respondent to a treatment facility . . . if it finds, by clear and convincing evidence,                                                                                          



that the respondent is mentally ill and as a result is likely to cause harm to the respondent                                                                                     

                         17    The respondent is "likely to cause serious harm" if the respondent "poses  

or others."                                                                                                                                                                                 



a substantial risk of harm to others as manifested by recent behavior causing, attempting,  

                                                                                                                                                                                 



or threatening harm, and is likely in the near future to cause physical injury, physical  

                                                                                                                                                                                        

abuse, or substantial property damage to another person."18  

                                                                                                                    



                               The superior court found that Jacob was mentally ill and was likely to cause  

                                                                                                                                                                                               



harm to others as a result of his mental illness because of:  (1) Jacob's partner's "serious  

                                                                                                                                                                                        



concerns" about Jacob "doing things . . . that he was disavowing any knowledge of,"  

                                                                                                                                                                                                  



including connecting an electric welder to their home's metal door; (2) his partner's  

                                                                                                                                                                                      



recognition of "the bottles used to make the so-called Molotov cocktails . . . from her  

                                                                                                                                                                                                    



own house"; (3) his partner's testimony that there were "a couple incidents" involving  

                                                                                                                                                                                     



"dangerous things occurring"; and (4) Dr. Mack's statements about whether Jacob's  

                                                                                                                                                                                         



"delusions  .  .  .  [and]  fixed  false  beliefs,  [were]  resulting  in  behavior  that  poses  a  

                                                                                                                                                                                                        



substantial risk to others."  

                                                                



                               Jacob does not challenge the finding that he was mentally ill.  But Jacob  

                                                                                                                                                                                              



urges us to  review de novo  the superior  court's decision regarding  harm to  others  

                                                                                                                                                                                            



because Jacob "was committed based on speculation and not on facts sufficient to meet  

                                                                                                                                                                                                



a  clear  and  convincing  standard  of  proof."                                                               We  decline  to  do  so  because  Jacob's  

                                                                                                                                                                                         



                17             AS 47.30.735(c).   



                18  

                                                                                                                                                                                                         

                               AS 47.30.915(12)(B); In re Joan K., 273 P.3d 594, 598 (Alaska 2012).  



                                                                                                  -9-                                                                                                   7133  


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

argument, though couched as a legal question, simply asks us to reweigh the evidence                                                                 



presented at the 30-day hearing and choose between conflicting interpretations. We will                                                                                



not overturn a fact finding unless left "with a definite and firm conviction that a mistake                                                                    

                                   19     Conflicting evidence is generally insufficient to overturn a fact  

has been made."                                                                                                                                                       

finding, and we will not reweigh evidence if the record supports the court's finding.20  

                                                                                                                                                          



                           Jacob's partner testified that she was concerned for her safety because of  

                                                                                      



his actions.  She stated that she recognized the bottles used to set fire to their neighbor's  

                                                                                                                                                         



house as coming from her house.  The neighbor's testimony also supports the court's  

                                                                                                                                                                



inference that Jacob had  been involved with both the rock and "Molotov cocktail"  

                                                                                                                                                            



incidents.  Dr. Mack described the danger of Jacob's delusional disorder as his false  

                                                                                                                                                                     



beliefs about his neighbor manifesting in actions like "setting dangerous booby traps,  

                                                                                                                                                                   



taking preemptive activities, or going to extreme measures to ensure security." Because  

                                                                                                                                                              



evidence in the record supports the court's finding, we cannot say it is clearly erroneous.  

                                                                                                                                                                                



Accordingly, the 30-day order was not erroneously issued.  

                                                                                                         



              B.           The 90-Day Commitment Order  

                                                                                    



                           1.            The 30-day order did not taint the 90-day order.  

                                                                                                                                    



                           Alaska  Statute  47.30.740(c)  allows  "findings  of  fact  relating  to  the  

                                                                                                                                                                       



respondent's behavior made at a 30-day commitment hearing under AS 47.30.735" to  



be admitted as evidence, and those findings "may not be rebutted except that newly  

                                                                                                                                                                  



              19           In re Tracy C.               , 249 P.3d 1085, 1089 (Alaska 2011) (citing                                               Wetherhorn v.   



Alaska Psychiatric Inst.                        , 156 P.3d 371, 375 (Alaska 2007)).                        



              20           Christina J. v. State, Dep't of Health & Soc. Servs., Office of Children's  

                                                                                                                                                         

Servs.,  254  P.3d  1095,  1103  (Alaska  2011)  ("Conflicting  evidence  is  generally  

                                                                                                                                                          

insufficient to overturn the superior court, and we will not reweigh evidence when the  

                                                                                                                                                                         

record provides clear support for the superior court's ruling.").  

                                                                                                             



                                                                                   -10-                                                                             7133
  


----------------------- Page 11-----------------------

                                                                                                                                                                                                                     21  

discovered evidence may be used for the purpose of rebutting the findings."                                                                                                                                                Jacob  



asserts that this statute allowed the State to present much of the same evidence at the 90-                                                                                                                                         



day hearing as was provided at the 30-day hearing, prejudicing him because he could not                                                                                                                                              



raise issues                   concerning his partner's and neighbor's credibility or challenge                                                                                                           the allegedly   



erroneous findings from the 30-day hearing without newly discovered evidence.                                                                                                                                                  



                                     Jacob's first contention, that he was not able to raise issues concerning his                                                                                                                   



partner's or neighbor's credibility, is without merit. Jacob could have raised issues about                                                                                                                                    



those witnesses' credibility at the 90-day hearing regardless of any finding made at the                                                                                                                                             

                                           22  But when Jacob cross-examined both witnesses at the 90-day hearing,  

30-day hearing.                                                                                                                                                                                                        



he made no attempt to suggest they were not credible.  

                                                                                                                                                      



                                     Jacob's second contention is also without merit. Jacob argues that because  

                                                                                                                                                                                                                        



he could not refute findings from the 30-day hearing without new evidence, legal and  

                                                                                                                                                                                                                                   



factual errors occurring in that proceeding tainted any findings from the 90-day hearing.  

                                                                                                                                                                                                                                               



But, as explained above, the 30-day order was not erroneously issued, and we find no  

                                                                                                                                                                                                                                      



error in accepting the facts established at the 30-day hearing.  

                                                                                                                                                 



                                     2.                The jury instructions were correct.  

                                                                                                                                       



                                     Jury Instruction No. 17 reads:  

                                                                                                      



                                     On  January  12,  2015,  the  court  issued  findings  of  fact  

                                                                                                                                                                                             

                                     following hearings related to a petition for hospitalization.  

                                                                                                                                                                                                          

                                     These facts cannot be rebutted during this hearing, unless  

                                                                                                                                                                                       

                                     [Jacob] brings forth new evidence.   This means you must  

                                                                                                                                                                                           

                                     accept those facts as true.   The facts that were established  

                                                                                                                                                                          

                                     during each of those hearings were as follows:  

                                                                                                                                              



                  21                 AS 47.30.740(c).   



                  22                 See Davis v. Alaska, 415 U.S. 308, 316 (1974) ("The partiality of a witness  

                                                                                                                                                                                                                       

is subject to exploration at trial, and is 'always relevant as discrediting the witness and                                                                                                                                        

                                                                                                                                                                IGMORE, E                    VIDENCE   940 at   

affecting the weight of his testimony.' " (quoting 3A J. W 

                                                                                                              

775 (1970))).                          



                                                                                                                 -11-                                                                                                           7133
  


----------------------- Page 12-----------------------

                                    (1)	              [Jacob] was mentally ill, and as a result of that illness,                                                                 

                                                      he posed a risk of harm to others.                                     



                                    (2)	              [Jacob]                  was   advised                            of        and            refused                  voluntary  

                                                      treatment.   



 Jacob contends that this instruction prejudiced him because it forced the jury to accept                                                                                                                            



 the legal conclusions from the 30-day hearing, eliminating the State's burden to prove                                                                                                     



 that Jacob was mentally ill and as a result posed a risk of danger to others at the time of                                                                                                                                     

 the 90-day hearing.                                23  



                                    Instruction No.  17  did  not prejudice Jacob  when  read  in  concert with  

                                                                                                                                                                                                                          

 Instruction No. 12.24   Instruction No. 17 informed the jurors that they must accept as true  

                                                                                                                                                                                                                            



 that Jacob "was mentally ill, and as a result of that illness, he posed a risk of harm to  

                                                                                                                                                                                                                                 



 others" at the time of the 30-day hearing.  (Emphasis added.)  And Instruction No. 12  

                                                                                                                                                                                                                               



 told the jury its task was to determine if Jacob "is mentally ill" and "as a result of his  

                                                                                                                                                                                                                              



 mental illness he is likely to cause harm to himself or others."  (Emphases added.)  This  

                                                                                                                                                                                                                          



 clearly reflects AS 47.30.755's requirement that a jury find Jacob mentally ill and posing  

                                                                                                                                                                                                                     

                                                                                                                                 25   There was no prejudicial error in the  

 a risk of danger at the time of the 90-day hearing.  

                                                                                                                                                                                                                               



jury instructions.  

             



                  23                See Tracy C.                      , 249 P.3d at 1092 (interpreting 30-day commitment statute to                                                                                               



 require finding based on respondent's mental health at time of the hearing and noting that                                                                                                                                  

 "[t]he superior court may not involuntarily commit a patient . . . if by the time of the                                                                                                                                     

 hearing the patient is no longer mentally ill . . . or likely to harm []self or others").                                                                                                                                   



                  24                "An error in jury instructions is grounds for reversal only if it caused  

                                                                                                                                                                                                                   

 prejudice."  City of Hooper Bay v. Bunyan, 359 P.3d 972, 978 (Alaska 2015) (quoting  

                                                                                                                                               

 Thompson v. Cooper, 290 P.3d 393, 398-99 (Alaska 2012)).  

                                                                                                                                                                   



                  25                This statute allows the superior court to commit a respondent for 90 days  

                                                                                                                                                                                                                          

 if the "jury finds by clear and convincing evidence that the respondent is mentally ill and  

                                                                                                                                                                                                                             

 as a result is likely to cause harm to self or others."  AS 47.30.755(a).  

                                                                                                                                                      



                                                                                                              -12-	                                                                                                      7133
  


----------------------- Page 13-----------------------

                                         3.                   The 90-day order was supported by the evidence.                                                                                    



                                         Jacob argues that the superior court should have disregarded the jury's                                                                                                                                        



finding that he was mentally ill and as a result was likely to cause harm to others because                                                                                                                                                       



no evidence was presented at the 90-day hearing that Jacob was likely to cause harm to                                                                                                                                                                              



others.  The parties disagree whether Jacob can challenge the court's decision directly  



or must challenge the jury's verdict, because AS 47.30.755(a) states that "the court may                                                                                                                                                                      



commit the respondent" if the jury finds that the respondent is mentally ill and is likely                                                                                                                                                               



to   cause   harm   to   others.     Our   task   in   reviewing   the   90-day   order   would   change  



depending on whether we review the jury's verdict or the court's fact findings: We must                                                                                                                                                                     

                                                                                                                                                                                                         26  but we review the  

affirm a jury's fact findings unless no evidence supports them,                                                                                                                                                                                                 

                                                                                                                                                                                                           27         Because  Jacob's  

court's fact findings to determine if they are clearly erroneous.                                                                                                                                                                                 

                                                                                                                                                                         



argument is unavailing under either standard of review, we do not decide whether the  

                                                                                                                                                                                                                                                                 



court could have appropriately disregarded the jury's verdict in this case.  

                                                                                                                                                                                                                  



                                         Jacob contends that the superior court "relied solely" on his refusal to take  

                                                                                                                                                                                                                                                              



medication when it entered the 90-day commitment order following the jury's verdict.  

                                                                                                                                                                                                                                                                              



He asserts that after the initial medication order expired he was voluntarily compliant  

                                                                                                                                                                                                                                           



with his medication and that because of his compliance the court should have found he  

                                                                                                                                                                                                                                                                   



"did  not  meet  the  standard  for  commitment  regardless  of  the  jury's  determination  

                                                                                                                                                                                                                              



otherwise."  But contrary to Jacob's assertion the court found, and our review of the  

                                                                                                                                                                                                                                                                



record supports, that Jacob still posed a risk of harm to himself or others.  

                                                                                                                                                                                                            



                     26                  Nautilus Marine Enters., Inc. v. Valdez Fisheries Dev. Ass'n                                                                                                                                     , 943 P.2d        



 1201,   1205   n.8   (Alaska   1997)   ("A   jury's  verdict   will   be   overturned   if   there   is   no  

evidence supporting the verdict." (quoting                                                                                        Municipality of Anchorage v. Baugh Constr.                                                                        

& Eng'g Co.                             , 722 P.2d 919, 927 (Alaska 1986))).                                                                               



                     27                  Dale H. v. State, Dep't of Health &Soc. Servs., 235 P.3d 203, 209 (Alaska  

                                                                                                                                                                                                                                                   

2010).  

                      



                                                                                                                               -13-                                                                                                                        7133
  


----------------------- Page 14-----------------------

                                                              There is strong evidence in the record that at the 90-day hearing Jacob still                                                                                                                                                                                                                                                    



 suffered from                                                  delusional disorder at the same intensity as during his 30-day commitment                                                                                                                                                                                                             



hearing.   Mannen testified that he had reviewed the treatment team's records the day                                                                                                                                                                                                                                                                                                          



before the hearing                                                                        began and                                             that he evaluated                                                                      Jacob   after   the hearing's first                                                                                                                day.   



Mannen indicated that Jacob did not understand his diagnosis, had been on medication                                                                                                                                                                                                                                                                         



for only ten days, had not yet benefitted fromthe medication, and his delusions remained                                                                                                                                                                                                                                                                              



active.   In response to the question "today, do you believe that [Jacob] poses a risk of                                                                                                                                                                                                                                                                                                             



harm to himself or other people," Mannen responded "I do, yes." Mannen explained his                                                                                                                                                                                                                                                                                                               



opinion was based on Jacob's lack of progress in softening his delusions. This evidence                                                                                                                                                                                                                                                                                



 supports the jury's verdict and the court's issuance of the 90-day commitment order.                                                                                                                                                                                                                                                                                                                  It  



was not error to issue the 90-day commitment order.                                                                                                                                                                    



                               C.                             No Less Restrictive Alternative To Commitment                                                                                                                                



                                                               1.                            The superior court properly considered the question.                                                                                                                                                                    



                                                              Courts must consider whether a less restrictive alternative would provide                                                                                                                                                                                                     

                                                                                                                                                                                                                                                                                                                            28              Alaska Statute  

adequate treatment                                                                             when  contemplating   involuntary commitment.                                                                                                                                                                                                                                  



47.30.730(a)(2) requires a 30-day involuntary commitment petition to "allege that the  

                                                                                                                                                                                                                                                                                                                                                                                                 



evaluation staff has considered but has not found that there are any less restrictive  

                                                                                                                                                                                                                                                                                                                                                               



alternatives available that would adequately protect the respondent or others."   This  

                                                                                                                                                                                                                                                                                                                                                                                       



                               28                             AS 47.30.915(11);                                                                      In re Joan K.                                               , 273 P.3d 594, 598, 601-02 (Alaska 2012)                                                                                                                            



 (finding no less restrictive alternative where surveillance by family would not provide  

 sufficient support and patient's behavior lacked stability in part because she denied she                                                                                                                                                                                                                                                                                                       

was mentally ill).                                                                 "Least restrictive alternative" means that the treatment facilities and                                                                                                                                                                                                                                     

                                                                                                                                                                                                                                                                                                                                                                                                 

conditions "are no more harsh, hazardous, or intrusive than necessary to achieve the  

treatment objectives of the patient" and "involve no restrictions on physical movement                                                                                                                                                                                                                                                                         

nor  supervised   residence   or   inpatient   care   except   as   reasonably   necessary   for   the  

administration of treatment or the protection of the patient or others from physical                                                                                                                                                                                                                                                                                   

injury."   Joan K.                                                             , 273 P.3d at 599 (quoting AS 47.30.915(11)).                                                                                                                                                                           



                                                                                                                                                                                               -14-                                                                                                                                                                                       7133
  


----------------------- Page 15-----------------------

                                                                                          29  

requirement carries over to a 90-day petition.                                                And AS 47.30.735(d) states that "[i]f the                                   



court   finds   that   there   is   a   viable   less   restrictive   alternative   available   and   that   the  



respondent has been advised of and refused voluntary treatment through the alternative,                                                                  



the court may order the less restrictive alternative treatment."                                                                 This requirement also   

carries over to a 90-day commitment.                                        30  



                           Alaska Statute 47.30.745(c) gives a respondent the right to a jury trial when  

                                                                                                                                                                     



contesting a 90-day commitment petition.   Jacob asserts that his right to a jury trial  

                                                                                                                                                                       



should extend at minimum to the factual findings underpinning whether a less restrictive  

                                                                                                                                                            



alternative exists.  

                                      



                           An  examination  of  AS  47.30.755  leads  us  to  conclude  that  the  less  

                                                                                                                                                                       



restrictive alternative decision, including any necessary fact findings underpinning that  

                                                                                                                                                                        

                                                                                          31  Alaska Statute 47.30.755(a) specifically  

decision, rests with the court and not the jury.                                                                                                         

                                                                                  



permits either "the court or jury" to find that a respondent is mentally ill and as a result  

                                                                                                                                                                    



              29           AS 47.30.740(a).   



              30           AS 47.30.755(b).   



              31           AS 47.30.755 provides:  

                                                                             



                                         (a)  After the hearing and within the timelimit                                          specified  

                           in AS 47.30.745, the court may commit the respondent to a  

                                                                                                                                                  

                           treatment facility for no more than 90 days if the court or jury  

                                                                                                                                             

                           finds by clear and convincing evidence that the respondent is  

                                                                                                                                                  

                           mentally ill and as a result is likely to cause harm to self or  

                                                                                                                                                

                           others, or is gravely disabled.  

                                                                     



                                         (b)  If the  court finds that there is a less restrictive  

                                                                                                                                

                           alternative available and that the respondent has been advised  

                                                                                                                                      

                           of and refused voluntary treatment through the alternative,  

                                                                                                                              

                           the court may order the less restrictive alternative treatment  

                                                                                                           

                           after  acceptance  by  the  program  of  the  respondent  for  a  

                                                                                                                                                  

                           period not to exceed 90 days.  

                                                                             



                                                                                    -15-                                                                             7133
  


----------------------- Page 16-----------------------

                                                         32  

is likely to cause harm to others.                            In contrast AS 47.30.755(b) allows only "the court"                               



                                                                                    33  

to find that there is a less restrictive alternative.                                                                                                 

                                                                                         The language difference between the  



                                                                                                                                                  

provision's two parts shows that the statute clearly was intended to allow only the court  



                                                                                                                               

to make this decision.  And this makes sense in balancing the roles of the jury and the  



                                                                                                                                      

court - the less restrictive alternative determination requires balancing an individual's  



                                                                                                                                          

liberty interest, the State's interest in treating the individual, and available treatment  

                                      34  This is a task uniquely suited to the court.  It was not error for  

                                                                                                                                                      

options and facilities. 



the superior court to make the less restrictive alternative determination, including the  

                                                                                                                                                      



factual findings underpinning that decision.  

                                                               



                        2.	         The  record  supports  the  superior  court's  less  restrictive  

                                                                                                                                      

                                    alternative decision.  

                                                          



                        The superior court provided limited analysis in its written order concerning  

                                                                                                                                        



the existence of a less restrictive alternative: "[Jacob] has active delusions. He does not  

                                                                                                                                                      



believe he has a mental illness and is unlikely to take necessary medication.  There are  

                                                                                                                                                      



no less restrictive alternatives for him right now. . . . No less restrictive facility would  

                                                                                                                                                



adequately protect [Jacob] and the public, and no less restrictive facility has accepted  

                                                                                                                                           



[Jacob]."  

                   



                        However the court's oral findings during the 90-day hearing were more in- 

                                                                                                                                                       



depth.  The jury found that Jacob's continuing mental illness meant he posed a risk of  



danger  to  others,  and the court noted that "[m]oving a couple blocks away [to his  

                                                                                                                                                     



brother's house] probably is not going to protect [the neighbor] at this point" as Jacob's  

                                                                                                                                              



            32          AS  47.30.755(a).  



            33          AS  47.30.755(b).  



            34          See  Bigley  v.  Alaska  Psychiatric  Inst.,  208  P.3d   168,   185  (Alaska  2009)  



(explaining  existence  of  less  restrictive  alternative  is  mixed  question  of  law  and  fact).   



                                                                          -16-	                                                                   7133
  


----------------------- Page 17-----------------------

delusions about her had not yet softened.                                                                                And the court explained that Jacob would                                                                  



remain "a danger to the public until" there were sufficient assurances that he would take                                                                                                                                                



his medication.                              The court had "no reason at [that] point to think that" Jacob would take                                                                                                                    



his medication as part of outpatient treatment.                                                                                     



                                      Jacob again asks us to weigh conflicting evidence to determine that the                                                                                                                               



court's decision was incorrect, but we "grant especially great deference" to the trial court                                                                                                                                           



in these situations and "will reverse only if a review of the record leaves us with a                                                                                                                                                            

                                                                                                                                                                      35   Jacob points to Mannen's  

definite and firm conviction that a mistake has been made."                                                                                                                                                              



testimony that Jacob could be safely discharged under certain conditions and Jacob's  

                                                                                                                                                                                                                               



brother's testimony that he would house and supervise Jacob as suggesting that a less  

                                                                                                                                                                                                                                        



restrictive alternative to treatment at API existed.  Jacob argues that the State did not  

                                                                                                                                                                                                                                            



adequately explore the possibility of Jacob living with his brother because there "was no  

                                                                                                                                                                                                                                              



testimony fromAPI that anyone had spoken with Jacob's brother about Jacob living with  

                                                                                                                                                                                                                                         



him to see if he could allay any concerns about the proposed living arrangement."  But  

                                                                                                                                                                                                                                          



Mannen explained that changing Jacob's residence might "actually worsen his thinking"  

                                                                                                                                                                                                                           



and that he might "work harder" to act on his delusions.  Mannen also stated that family  

                                                                                                                                                                                                                                   



supervision was not an acceptable alternative to treatment at API until Jacob showed a  

                                                                                                                                                                                                                                                  



more robust response to his medication and his delusions softened.  Even though Jacob  

                                                                                                                                                                                                                                     



testified  that  he  would  be  willing  to  take  medication  and  participate  in  outpatient  

                                                                                                                                                                                                                       



treatment if released from API, the superior court found Jacob's testimony was not  

                                                                                                                                                                                                                                           

credible, a finding we will not question on appeal.36  

                                                                                                                          



                   35                In re Tracy C.                            , 249 P.3d 1085, 1089 (Alaska 2011) (quoting                                                                                        Bigley, 208   



P.3d at 178) (citing                                     Wetherhorn v. Alaska Psychiatric Inst.                                                                       , 156 P.3d 371, 375 (Alaska                              

2007)).  



                   36                 See Hannah B. v. State, Dep't of Health &Soc. Servs., Office of Children's  

                                                                                                                                                                                                                       

                                                                                                                                                                                                               (continued...)  



                                                                                                                     -17-                                                                                                              7133
  


----------------------- Page 18-----------------------

                     Because the record supports the superior court's determination - by clear                                     



                                        37  

and convincing evidence                                             

                                           - that no less restrictive alternative to commitment at API  



                                                                  

existed, that determination is not clearly erroneous.  



                                                  

           D.	       The Medication Order  



                                                                                                                                

                     1.	        Jacob's challenge to the medication order falls within the public  

                                                                                           

                                interest exception to the mootness doctrine.  



                                                        

                     The superior court's order authorizing Jacob's "involuntary commitment  

                                                                                                                 38   "To treat an  

                                                                                                                              

does not authorize the [S]tate to treat [him] with psychotropic drugs." 



unwilling and involuntarily committed mental patient with psychotropic medication, the  

                                                                                                                                      



[S]tate must . . fil[e] a second petition, asking the court to approve the treatment it  

                                                                                                                                        

proposes to give."39  

                                                                                                                         

                                  In that petition the State must prove - by clear and convincing  



                                                                                                                            

evidence - "that the committed patient is currently unable to give or withhold informed  



                                                                                                                               

consent regarding an appropriate course of treatment" and that the patient never refused  

                                                                     40   If the court determines that the patient is  

                                                                                                                                        

such treatment while previously competent. 



not  competent  to  make  the  decision,  the  court  must  next  determine  whether  the  

                                                                                                                                     



           36        (...continued)  



                                                                                                                          

Servs., 289 P.3d 924, 930 (Alaska 2012) ("We defer to a superior court's credibility  

                                                                                                                                       

determinations, particularly when they are based on oral testimony." (citing Pravat P.  

                                                                               

v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 249 P.3d 264, 274  

                            

(Alaska 2011))).  



           37        In re Mark V., 375 P.3d 51, 58 (Alaska 2016) ("[A] petitioner must prove,  

                                                                                                                                 

by  clear  and  convincing  evidence,  the  petition's  allegation  that  there  are  no  less  

                                                                                                                                    

restrictive alternatives.").  

                                          



           38        Myers v. Alaska Psychiatric Inst., 138 P.3d 238, 242 (Alaska 2006).  

                                                                                                                        



           39        Id. at 242-43.  

                               



           40        Id. at 243 (first citing AS 47.30.836(3); then citing AS 47.30.839(g)).  

                                                                                                                                      



                                                                  -18-	                                                           7133
  


----------------------- Page 19-----------------------

                                                                                          41  

medication is in the patient's best interests.                                                 Jacob challenges both the superior court's                                 



determination that he was not competent and its finding that medication was in his best                                                                                         



interests.  



                            We note that challenges to involuntary medication orders generally are                                                                                



moot; due to the time required for appeal and the orders' temporary duration, even a                                                                                                  

                                                                                                                                           42   "[A] claim is moot  

favorable result on appeal will rarely stop involuntary medication.                                                                                                           



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."43   "We will, however, consider the merits of a  

                                                                                          



claim that would otherwise be moot if the claim falls within the public interest exception  

                                                                                                                                                                    

to  the  mootness  doctrine."44                                    One  circumstance  that  can  bring  a  medication  order  

                                                                                                                                                                            



challenge into this exception is when the challenge involves interpreting the underlying  

                                                                                                                                                                 

                                       45        Jacob  asserts  that  this  case  presents  a  question  involving  

statutory  scheme.                                                                                                                                                

                     



interpretation of AS 47.30.837(d), regarding when a patient is competent to make mental  

                                                                                                                                                                          



health treatment decisions, and we agree.  We therefore consider Jacob's arguments.  

                                                                                                                                                             



              41            See id.         at 250, 252, 254.          



              42  

                                                                                                                                                                

                            See, e.g., In re Gabriel C., 324 P.3d 835, 839 (Alaska 2014) ("Gabriel's  

                                                                                                                                                                                  

appeal of the involuntary medication order is moot because the record indicates that the  

                                                                                                   

order lapsed when his commitment ended.").  



              43            Id. (quoting In re Tracy C., 249 P.3d 1085, 1090 (Alaska 2011)).  

                                                                                                                                                        



              44             Tracy C., 249 P.3d at 1090 (citing Wetherhorn, 156 P.3d at 380).  

                                                                                                                                                                         



              45            See id. at 1090-91 ("[Q]uestions 'regarding interpretation of the underlying  

                                                                                                                                                                  

statutory scheme in commitment and medication proceedings' . . . fall under the public  

                                                                                                                                                                           

interest  exception  .  .  .  ." (alterations  in  original  omitted)  (quoting Bigley  v. Alaska  

                                                                                                                                                                         

Psychiatric Inst., 208 P.3d 168, 179 (2009))).  

                                                                               



                                                                                        -19-                                                                                 7133
  


----------------------- Page 20-----------------------

                            2.	           A single factor in AS 47.30.837(d)(1) can be dispositive when                                                                    

                                          determining a patient's competency.                    



                            Alaska   Statute   47.30.837   permits   a   treatment   facility   to   administer  



psychotropic drugs to a person involuntarily committed if, among other requirements,  



"the facility has reason to believe that the patient is not competent to make . . . mental       



health   treatment    decisions    and    the    facility    .    .    .    follow[s]    the    procedures    of  



                                 46  

AS 47.30.839."                                                                                                                               

                                       "Competent" in this context means the patient:  



                                                                                                                                                       

                                          (A) has the capacity to assimilate relevant facts and to  

                                                                                                                                              

                            appreciate and understand the patient's situation with regard  

                                                                

                            to those facts . . . ;  



                                                                                                                                          

                                          (B) appreciates that the patient has a mental disorder  

                                                                                                                                                        

                            or  impairment,  if  the  evidence  so  indicates;  denial  of  a  

                                                                                                                                                

                            significantly disabling disorder or impairment, when faced  

                                                                                                                                  

                            with   substantial   evidence   of   its   existence,   constitutes  

                                                                                                                                             

                            evidence that the patient lacks the capability to make mental  

                                                                

                            health treatment decisions;  



                                                                                                                                     

                                          (C)  has  the  capacity  to  participate  in  treatment  

                                                                                                                                       

                            decisions by means of a rational thought process; and  



                                                                                                                                                

                                          (D) is able to articulate reasonable objections to using  

                                                                              [47]  

                                                     

                            the offered medication. 



                            Jacob argues that the superior court found him incompetent based only on  

                                                                                                                                                                                  



his inability to meet AS 47.30.837(d)(1)(B), an error because the statute requires a court  

                                                                                                                                                                            



to weigh all the elements to determine competence.  According to Jacob we previously  

                                                                                                                                                                 



interpreted this statute to prevent a court from resting a competency decision on a single  

                                                                                                                                                                          



              46            AS 47.30.839 (setting out procedures for obtaining court order for forcibly                                                                



administering    psychotropic    medication    in    both    emergency    and    non-emergency  

situations).  



              47            AS 47.30.837(d)(1).  

                                                                         



                                                                                       -20-	                                                                                 7133
  


----------------------- Page 21-----------------------

element.   In  Myers v. Alaska Psychiatric Institute                                             we briefly discussed AS 47.30.837,                



stating that "[u]nder this provision, a patient's inability to appreciate the presence of a                       



                                                                                                                                                                    48  

mental disorder is a relevant consideration [for competency] but is not dispositive."                                                                                     

                                                                                                                                            49  As the State  

                                                                                                                                                               

                                                                                                                                

But AS 47.30.837's function and interpretation were not at issue in Myers .  



correctly asserts, this means that our brief mention of the statute in Myers is properly  

                                                                                                                                                       

considered dicta50  and does not control our interpretation of the statute here.  

                                                                                                                                          



                          Alaska Statute 47.30.837(d)(1) does not require a weighing of multiple  

                                                                                                                                                       



factors - this statute defines when a patient is "competent" in four parts joined by the  

                                                                                                                                                                  



word "and."  Because the four parts are joined in the conjunctive, a plain reading of the  

                                                                                                                                                                  



statute suggests that the absence of any one element requires a finding that the patient is  

                                                                                                                                                                     



not competent.   Section (B)'s  language further supports this reading of the statute:  

                                                                                                                                                                          



"[D]enial ofasignificantlydisabling disorder or impairment, when facedwithsubstantial  

                                                                                                                                                    



evidence of its existence, constitutes evidence that the patient lacks the capability to  

                                                                                                                                                                    

                                                                               51   This language contemplates that a patient's  

make mental health treatment decisions."                                                                                                               

                                                           



denial of a significantly disabling mental illness, even when faced  with  substantial  

                                                                                                                                        



             48           138 P.3d 238, 243 (Alaska 2006) (citing AS 47.30.837(d)(1)(B)).                        



             49  

                                                                                                                                                              

                          Id.  at 254 (holding that the Alaska Constitution prohibits a court from  

authorizing psychotropic drug treatment of an incompetent patient unless the court finds                                                                      

                                                                                                                                                       

"that the proposed treatment is in the patient's best interests and that no less intrusive  

                                                  

alternative is available").  



             50           See, e.g., Planned Parenthood of the Great Nw. v. State, 375 P.3d 1122,  

                                                                                                                                                             

 1135 (Alaska 2016) ("Suggesting that we somehow answered a question that was not  

                                                                                                                                                                  

actually asked in [the prior case] is both incorrect and contrary to precedent.  In every  

                                                                                                                                                      

case we decide what we decide, and nothing more."); AAA Valley Gravel, Inc. v. Totaro ,  

                                                                                                                                                          

219 P.3d 153, 167 (Alaska 2009) (agreeing with argument that a statement by trial court  

                                                                                                                                                              

was dicta, explaining it was not the litigation's focus and "not binding").  

                                                                                                                                               



             51           AS 47.30.837(d)(1)(B).  

                                  



                                                                                -21-                                                                          7133
  


----------------------- Page 22-----------------------

evidence of that illness, will inform the court's decision on the overarching question of                                                                                                                                        



competence to make mental health treatment decisions. This suggests that a court could                                                                                                                                  



find   a   patient   lacks   competence   to  make   medical   treatment   decisions   based   on  



AS 47.30.837(d)(1)(B) alone.                                                      



                                    However "[w]e do not mechanically apply the plain meaning rule but use                                                                                                                   



a sliding scale approach to statutory interpretation, in which '[t]he plainer the statutory                                                                                                                    



language is, the more convincing the evidence of contrary legislative purpose or intent                                                                                                                                

                             52     Jacob presents no legislative history supporting his reading of the statute,  

must be.' "                                                                                                                                                                                                        



and we found none.  Because the statute's application to this case is plain and evidence  

                                                                                                                                                                                                               



contradicting a plain reading of the statute is lacking, we conclude that a superior court  

                                                                                                                                                                                                                         



may find a patient incompetent to make medical treatment decisions based on the lack  

                                                                                     



of a single element in AS 47.30.837(d)(1).  

                                                                     



                                    3.	              The superior court's finding that Jacob was not competent to  

                                                                                                                                                                                                                                 

                                                     participate in medical decisions is not clearly erroneous.  

                                                                                                                                                                                      



                                    We now turn to the question whether the superior court complied with the  

                                                                                                                                                                                                                              

medication order statutes in determining - by clear and convincing evidence53  

                                                                                                                                                                                                                            

                                                                                                                                                                                                                    - that  



                                                                                                                                                                    

Jacob lacked competence to participate in medical decisions.  



                                                                                                                                                                                                                     

                                    Jacob argues that the superior court found he lacked competence purely  



                                                                                                                                                                                                                       

because  he  was  not  recognizing  his  mental  illness,  and  that  in  doing  so  the  court  



                                                                                                                                                                                                                  

improperly disregarded evidence that he was in fact competent.  At the 30-day hearing  



                                                                                                                                                                                                                               

Dr. Mack testified to the effect of Jacob's inability to recognize his mental illness on his  



                  52               Huit v. Ashwater Burns, Inc.                                                  , 372 P.3d 904, 912 (Alaska 2016) (second                                                       



alteration in original) (quoting                                                Gov't Emps. Ins. Co. v. Graham-Gonzalez                                                                         , 107 P.3d 279,            

284 (Alaska 2005)).                                     



                  53               AS 47.30.839(g);  Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371,  

                                                                                                                                                                                                                          

382 (Alaska 2007).  

                                   



                                                                                                              -22-	                                                                                                      7133
  


----------------------- Page 23-----------------------

ability to participate in medical treatment decisions.                                                                                                                       Jacob was not able to rationally                                             



discuss treatment goals or establish a long-term maintenance plan because all discussion                                                                                                                                                                



attempts ended in him flatly denying his disorder.                                                                                                                        At the 90-day hearing the court-                                                           



appointed visitor similarly stated that Jacob's inability to recognize his mental illness                                                                                                                                                                           



prevented   him   from   having  a   rational   discussion   about   treatment.     This   testimony  



supports the court's determination that Jacob was not competent because he did not meet                                                                                                                                                                                   



AS 47.30.837(d)(1)(B)'s requirement that he be able to recognize his mental illness to                                                                                                                                                                      



the extent required to make mental health treatment decisions. Accordingly, the superior                                                                                                                                                                       



court's finding is not clearly erroneous.                                                     



                                            4.	                  Thesuperiorcourt's                                                     finding that medication was inJacob's                                                                                              best  

                                                                 interests is not clearly erroneous.                                           



                                           Jacob argues that the superior court's finding that the 30-day medication                                                                                                                                 



                                                                                                                                                                        54  

order was in his best interests was clearly erroneous.                                                                                                                                                                                                             

                                                                                                                                                                               Jacob also argues that the court's  



                                                                                                                                                                                                                                                                                

findings about the Myers best interests factors were not sufficiently detailed in either the  



                                                                                                                                                          

30- or 90-day medication order.  Those factors 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 patient's body  

                                                                                                                                                                                      [55]  

                                                                                                                                                     

                                            and the pain associated with the treatment. 



                      54                   Myers, 138 P.3d at 254 ("[A] court may not permit a treatment facility to                                                                                               



administer   psychotropic   drugs   unless   the   court   .   .   .   expressly   finds   by  clear   and  

convincing evidence that the proposed treatment is in the patient's best interests and that                                                                                                                                                                                  

no less intrusive alternative is available.").                                                     



                      55                   Id. at 252 (citing Price v. Shepard, 239 N.W.2d 905, 913 (Minn. 1976))  

                                                                                                                                                                                                                                                                   

(directing courts to "balance [a] patient's need for treatment against the intrusivenes of  

                                                                                                                                                                                                                                                                                  

the prescribed treatment" (quoting Price, 239 N.W.2d at 913)).  

                                                                                                                                                                                          



                                                                                                                                      -23-	                                                                                                                              7133
  


----------------------- Page 24-----------------------

                                     Dr. Mack's testimony at the 30-day hearing about the proposed medication                                                                                                     



supports a conclusion under the                                                            Myers   factors that the treatment was in Jacob's best                                                            



interests: Jacob previously showed great improvement while taking the medication over                                                                                                                                               



a short time period; the risk of adverse side effects was low; and the medication was a     



non-experimental, accepted treatment for delusional disorder.                                                                                                                The court's finding that                                



the medication was in Jacob's best interests is not clearly erroneous.                                                                                           



                                     We have previously noted the need for courts to make detailed findings                                                                                                              



concerning the                              Myers   best interests factors or to incorporate the magistrate judge's                                                                                                       

                                                                                                                                                       56   The superior court considered  

findings when deciding involuntary medication orders.                                                                                                                                                             



Jacob's objections to the magistrate judge's recommendation that the 30-day medication  

                                                                                                                                                                                                                  



order  be  granted.                                      In  response  the  superior  court  adopted  the  magistrate  judge's  

                                                                                                                                                                                                                          



reasoning that Dr. Mack's testimony supported the best interests finding.   As noted  

                                                                                                                                                                                                                                



above this testimony supports the finding that medication was in Jacob's best interests  

                                                                                                                                                                                                                         



under the Myers factors.  

                                               



                                     The superior court's best interests determination for the 90-day medication  

                                                                                                                                                                                                                  



order was similarly sparse, with the court pointing to Mannen's testimony as support.  

                                                                                                                                                                                                                                                   



The medication requested in the 90-day medication petition was the same medication  

                                                                                                                                                                                                                 



given under the 30-day medication order. And, similarly to Dr. Mack's testimony at the  

                                                                                                                                                                                                                                        



30-day medication hearing, Mannen's testimony supported a finding that the medication  

                                                                                                                                                                                                                  



was in Jacob's best interests.  Accordingly, the superior court's best interests finding  

                                                                                                                                                                                                                           



underpinning the 90-day medication order is not clearly erroneous.  

                                                                                                                                                                                             



                   56                See  In  re  Gabriel  C.,  324  P.3d  835,  840  (Alaska  2014).   



                                                                                                                  -24-                                                                                                                       7133  


----------------------- Page 25-----------------------

                                 Although we affirm the superior court's medication decisions, we again                                                                                                    



                                                                                                                                                                                                       57  

emphasize the need for detailed findings when making best-interests decisions.                                                                                                                             



V.               CONCLUSION  



                                                                                                                                                                                                

                                 We AFFIRM the superior court's commitment and medication orders.  



                 57              See id.  

                                            



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