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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In the Matter of the Necessity for the Hospitalization of: Tonja P. (2/17/2023) sp-7642
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
In the Matter of the Necessity for the )
Hospitalization of ) Supreme Court No. S-18077
)
TONJA P.
) Superior Court No. 3AN-21-00530 PR
)
) O P I N I O N
)
) No. 7642 - February 17, 2023
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Jennifer Henderson, Judge.
Appearances: Julia Bedell, Assistant Public Defender, and
Samantha Cherot, Public Defender, Anchorage, for Tonja P.
Laura Fox, Senior Assistant Attorney General, Anchorage,
and Treg R. Taylor, Attorney General, Juneau, for State of
Alaska.
Before: Winfree, Chief Justice, Maassen, Carney, and
Borghesan, Justices. [Henderson, Justice, not participating.]
CARNEY, Justice.
I. INTRODUCTION
Awomanappealscourt orders authorizing her involuntarycommitmentand
administration of psychotropic medication. She argues the superior court erred by
relying on a cursory report from the court visitor and by failing to make specific findings
that involuntary medication was in her best interests. She also contends that it was error
to commit her to a psychiatric hospital instead of to a less restrictive facility. We affirm
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the superior court's orders.
II. FACTS AND PROCEEDINGS
A. Facts
1
Tonja P.
suffers from schizophrenia; before March 2021 she had
previously been committed to the Alaska Psychiatric Institute (API) six times. Between
2016 and 2021 Tonja lived with her parents and was able to manage her illness with
outpatient treatment. In March 2021 her health deteriorated after she stopped taking
medication. She became unable to care for her hygiene and other needs and became
aggressive with her parents. Tonja went to API voluntarily but after she was admitted
she declined medication. API petitioned for an order authorizing Tonja's hospitalization
for evaluation. Tonja's father, who is her legal guardian, supported API's request. The
superior court granted the evaluation order.
2
A day later API filed a petition to commit Tonja for 30 days for treatment
and a petition to authorize the involuntary administration of psychotropic medication.3
The commitment petition alleged Tonja was mentally ill and was "[c]urrently psychotic,
responding to internal stimulation (hallucinations) and unable to communicate
effectively." It also alleged she was gravely disabled because she was unable to make
an informed decision or to communicate her needs. The petition asserted that Tonja
would not be safe and would be unable to obtain shelter or food outside of API. The
involuntary medication petition sought authorization to treat Tonja with two
psychotropic medications.
1 We use a pseudonym to protect her identity.
2 See AS 47.30.730-.735 (setting out 30-day commitment procedure).
3 See AS 47.30.839 (describing procedures for seeking court order to
administer psychotropic medication).
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B. Proceedings
1. 30-day commitment and medication petitions
A combined hearing on both petitions was held before a master on March
11. API presented Tonja's treating psychiatrist, Dr. Laura Swogger, as an expert witness
in psychiatry. Dr. Swogger testified that Tonja initially had been aggressive at API and
had bitten one of the officers who brought her in. She testified that Tonja had since
become withdrawn and isolated, and was not able to organize her thoughts or
communicate in a coherent manner. She acknowledged that Tonja was taking care of her
basic needs but required "a lot of supervision and prompting." Dr. Swogger testified that
Tonja had voluntarily taken medication when she first arrived at API, but that she began
refusing medication shortly after her admission. Dr. Swogger testified that she spoke
with Tonja's father, who stated he and her mother wanted her to return home but not
until her condition improved.
Dr. Swogger also testified that Tonja would not be able to function if
released to a homeless shelter because she would be unable to care for her basic needs
andwouldeasily bevictimized becauseofher "confused"and "disoriented" mental state.
Dr. Swogger explained that API offered a variety of types of therapy but that Tonja
would not benefit from them until her psychosis improved, which required medication.
She testified that a similar treatment plan had worked for Tonja in the past. Dr. Swogger
also stated that she was unaware of any outpatient provider that would accept someone
with Tonja's level of need.
Tonja was provided with an opportunity to testify, but she was unable to
speak coherently and eventually declined to speak. Because Tonja was unable to
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communicate her wishes, her attorney took no position on the commitment petition 4
except to emphasize API's high burden.
The superior court accepted the master's recommendation and granted the
commitment petition. It found that Tonja was mentally ill because she "has a long-
standing, professional diagnosis of schizophrenia"; that Tonja was gravely disabled
because "[h]er mental illness precludes her from safely taking care of her physical
needs"; and that she "w[ould] suffer increasingly severe mental distress" if untreated.
The court also relied on Dr. Swogger's testimony that no other "outpatient treatment or
program would be effective and safe at this time."
The superior court next addressed the medication petition. The court-
5 testified that Tonja could not follow a conversation; was confused
appointed visitor
about her name, what year it was, and where she was located; and denied having a
mental illness. The court visitor described Tonja as "confused and disorganized" and
"actively delusional." She stated that Tonja had not expressed any reasonable objections
to medication or identified any side effects that concerned her. The court visitor
concluded that Tonja did not have the capacity to give consent, to assimilate information
regarding her diagnosis and treatment, to make treatment decisions or participate in
treatment, and lacked insight or the ability to rationally engage in treatment decisions.
She testified that she attempted to reach Tonja's father but was unsuccessful, and that
Tonja "does not appear to have an advance[] health care directive."
4 See Alaska R. Prof. Conduct 1.2(a) and comment (describing lawyer's
general obligation to consult with client); Alaska R. Prof. Conduct 1.14 and comment
(describing lawyer's duties to clients with impaired capacity).
5 See AS 47.30.839(d) (providing for court appointment of visitor "to assist
the court in investigating the issue of whether the patient has the capacity to give or
withhold informed consent to the administration of psychotropic medication.").
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Dr. Swogger was called again. She agreed with the court visitor's
conclusions. Dr. Swogger testified that she planned to administer the antipsychotic
medication risperidone to Tonja, but to have a second medication, haloperidol, as a
backup in case Tonja did not tolerate risperidone. She testified that the medication plan
was within the standard of care for schizophrenia, that Tonja had successfully been
treated with both medications in the past without negative effects, and that her risk for
side effects was low. Dr. Swogger also testified that API took the potential for side
effects very seriously, and she detailed measures to monitor and address potential side
effects. Finally, Dr. Swogger testified that medication was in Tonja's best interest
because her condition would "probably stay the same or . . . potentially worsen" without
it. Tonja's attorney again took no position on the petition except to reiterate API's high
burden and emphasize that granting the petition would be a "serious intrusion."
The court granted the medication petition. It found that Tonja lacked the
capacity to give informed consent, that the court visitor could not locate an advance
health care directive for Tonja, that medication was in Tonja's best interest, and that
there were no other reasonable and less restrictive alternatives to medication. The court
concluded that "the benefits of these medications clearly outweigh the minimally
anticipated risks[,]" and that "Dr. Swogger ha[d] articulated a plan of treatment that
includes close monitoring" for side effects.
2. 90-day commitment and medication petitions
6 and for
Several weeks later API petitioned for a 90-day commitment order
continued authorization to administer medication. Ahearing was held on April 8 on both
petitions. Dr. Swogger again testified. She stated that Tonja had improved and was able
to communicate but did not make much sense. She testified that Tonja continued to
6
See AS 47.30.740-.745 (setting out 90-day commitment procedure).
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exhibit "symptoms of a thought disorder," including hallucinations and minor delusions.
She also testified that Tonja still needed prompting to take care of her basic needs and
that she was "not in any way able to procure her own food." She reported that Tonja's
parents still wanted her to return home but wanted her to be more stable before she came
home. She opined that returning Tonja to her family was "the strongest discharge plan"
for her.
Dr. Swogger explained that Tonja's current treatment planwasto transition
Tonja from oral medication to long-lasting injectable medication. Dr. Swogger testified
that outpatient facilities or assisted living facilities were not viable alternatives because
they were not able to involuntarily administer the injectable medication that Tonja
needed and could not prevent Tonja from leaving.
The superior court granted the petition for a 90-day commitment. Based
on Tonja's continued hallucinations and delusions and her inability to meet her needs,
the court concluded that she remained gravely disabled as a result of her mental illness.
The master then considered the medication petition. The same court visitor
testified. She reported that Tonja was "oriented in all spheres," but that she still
struggled to identify her exact location, continued to be confused and disorganized,
denied having a mental illness or need for medication, and was still unable to articulate
reasonable objections to medication or identify any concerning side effects. The court
visitor concluded Tonja still did not have capacity to give consent nor the ability to
engage rationally in treatment. The visitor also testified that she again attempted to
contact Tonja's father and was again unsuccessful, but this time the court visitor
informed the court that Tonja "does not have an advance health care directive."
Dr. Swogger was called to testify about Tonja's need for medication. She
agreed with the court visitor's testimony and added that Tonja's next treatment step was
to transition her from daily pills to one injection every 14 days. She testified that Tonja
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would benefit from continued medications and that Tonja had not experienced any side
effects so far. She explained that Tonja would be unable to benefit from other therapies
without further medication and that she "would go back to the way that she presented"
without medication. She acknowledged that Tonja was at risk for weight gain and
diabetes as a result of the medication but detailed measures API would take to counteract
those side effects.
The court granted the petition authorizing continued administration of
medication for the 90-day period. It found that Tonja did not have the capacity to give
informed consent.
3. Appeal
Tonja appeals both her 90-day commitment and the administration of
psychotropic medication. She argues that the superior court erred by finding that
commitment to API was the least restrictive means for treating her. She also argues that
the court visitor's report was cursory and it was error for the superior court to rely on it
when ordering the administration of medication. She acknowledges that because she did
not object to the visitor's report in superior court, she must show that this reliance was
plain error. And she argues that the superior court failed to make specific findings that
medication was in her best interests.
III. STANDARD OF REVIEW
"Wereviewthesuperiorcourt'sfactualfindings in involuntarycommitment
or medication proceedings for clear error and reverse those findings only if we have a
7
'definite and firm conviction that a mistake has been made.' " Whether "findings meet
thestatutory requirements for involuntarycommitment or medication is aquestion oflaw
7 In re Hospitalization of Naomi B., 435 P.3d 918, 923 (Alaska 2019)
(quoting In re Hospitalization of Jacob S., 384 P.3d 758, 763-64 (Alaska 2016)).
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to which we apply our independent judgment." 8
9
"We review issues raised for the first time on appeal for plain error." "A
10
plain error involves an 'obvious mistake' that is 'obviously prejudicial.' "
IV. DISCUSSION
A. The Superior Court Did Not Err By Finding That Commitment To
API Was The Least Restrictive Alternative.
Tonja argues that the court erred by finding that commitment was the least
restrictive alternative "because assisted living facilities were available to treat Tonja's
mental health." The civil commitment statutes are guided in part by the principle "that
persons be treated in the least restrictive alternative environment consistent with their
11
treatment needs." But "[a] proposed alternative 'must actually be available, meaning
that it is feasible and would actually satisfy the compelling state interests that justify the
12 The superior court found in this case that "[a]ssisted living
proposed state action.' "
facilit[ies] would not be able to provide security of locked doors to prevent [Tonja] from
eloping. They are also not geared to administering injectable medication with a
noncompliant person." Dr. Swogger further testifiedthatassistedlivingfacilities usually
would not accept "clients who are not compliant with their medication" and such
facilities were not capable of administering Tonja's medication.
8 Id. at 923-24.
9 In re Hospitalization of Connor J., 440 P.3d 159, 163 (Alaska 2019).
10 Id. (quoting In re Hospitalization of Gabriel C., 324 P.3d 835, 838 (Alaska
2014)).
11 AS 47.30.655 (describing "purpose and principles" of revision to civil
commitment statutes).
12 Naomi B., 435 P.3d at 933 (quoting Bigley v. Alaska Psychiatric Inst., 208
P.3d 168, 185 (Alaska 2009)).
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Tonja challenges the superior court's reasoning because she had no history
of eloping and did not need medication. But the court found that even though Tonja did
not have a history of leaving treatment, her hallucinations and delusions might cause her
to "wander[] off out the door," as the master had noted. And Dr. Swogger's
uncontradicted testimony was that Tonja continued to need medication in order to
improve.
The superior court did not err by finding that there was no less restrictive
alternative to commitment at API.
B. The Superior Court's Reliance On The Court Visitor's Cursory
Report Was Not Obviously Prejudicial.
Tonja argues that the court visitor failed to adequately investigate whether
she had previously refused psychotropic medication while competent. "When the state
files its petition to authorize psychotropic medication, the law requires a 'visitor' to be
13
appointed to assist the court when it considers the petition."
"One of the two core
duties assigned to the visitor under AS 47.30.839(d) is to investigate, document, and
report any prior statements - oral or written - that the patient might have made while
14 The purpose of the visitor's
competent that expressed wishes regarding medication."
report is to assist the court in making "an informed decision" on whether API has met
its burden to "prove by clear and convincing evidence that . . . the patient never
previously made a statement while competent that reliably expressed a desire to refuse
13 Myers v. Alaska Psychiatric Inst. , 138 P.3d 238, 243 (Alaska 2006); see
also AS 47.30.839(d).
14 Myers, 138 P.3d at 253. The visitor's other responsibility is to report "the
patient's responses to a capacity assessment instrument." AS 47.30.839(d)(1).
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15
future treatment with psychotropic medication." Tonja contends that it was plain error
for the superior court to rely on the court visitor's cursory report.
The court visitor testified that she "attempted to contact" Tonja's father but
was unsuccessful. At the first hearing the court visitor testified that Tonja " does not
appear to have an advance[] health care directive," but at the second hearing the visitor
testified that Tonja " does not have an advance health care directive." The court visitor
did not explain how she determined there was no directive and was not questioned
further about her investigation.
Alaska Statute 47.30.839(d) requires the court visitor "to assist the court
in investigating" and documenting "any expressed wishes of the patient regarding
medication . . . that may have been expressed in a [legal document], or . . . conversations
with relatives and friends that are significant persons in the patient's life . . . when
possible." While the visitor's testimony implies that she investigated and determined
that Tonja "does not" have an advance health care directive, there is no evidence that the
16
courtvisitor did anythingbeyond her two unsuccessful attempts to reach Tonja's father.
We have explained that "the court visitor's report is no mere technical
requirement";17 rather, it "is an essential component of the statutory scheme."18 "[I]n the
absence of an emergency, there is no reason why the statutory protections should be
15 Wetherhorn v. Alaska Psychiatric Inst. , 156 P.3d 371, 382 (Alaska 2007),
overruled on other grounds by Naomi B. , 435 P.3d 918.
16 AS 47.30.839(d)(2) (outlining court visitor's responsibility to investigate
patient's wishes regarding medication). The touchstone for assessing a court visitor's
report is whether it permits "the court [to] make an informed decision." Wetherhorn, 156
P.3d at 382.
17 Wetherhorn, 156 P.3d at 382.
18 Id.
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neglected in the interests of speed." 19 Accepting a court visitor's report based only on
unsuccessful attempts to reach a single relative risks turning the report into a mere
technical requirement. To ensure that the report assists the court in making a decision,
a visitor should provide evidence of the efforts taken. Without this evidence, the court
may struggle to make "an informed decision" whether API has met its burden to "prove
by clear and convincing evidence that . . . the patient never previously made a statement
while competent that reliably expressed a desire to refuse future treatment with
psychotropic medication." 20
Nonetheless the superior court did not plainly err in this case because the
visitor's cursory report was not "obviously prejudicial."21 The visitor's testimony
implies that she did investigate further before the second hearing and determined that
Tonja "does not have an advance health care directive." In addition to the visitor's two
failed attempts to contact Tonja's father, Dr. Swogger testified that she had been in
contact with the parents. And given Tonja's inability to communicate, she was unable
22 In light of these circumstances, the
to provide the court visitor with information.
superior court did not plainly err by accepting the court visitor's report.
C. The Superior Court Did Not Err By Finding That Medication Was In
Tonja's Best Interests.
Tonja argues that the superior court erred by failing to make specific
19 Id. at 381.
20 Id. at 382.
21 In re Hospitalization of Connor J., 440 P.3d 159, 163 (Alaska 2019)
(quoting In re Hospitalization of Gabriel C., 324 P.3d 835, 838 (Alaska 2014)).
22 Because Tonja had previously been committed to API six times, it is
possible that API records would have contained any advance directives she had made,
if she had made any.
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findings about whether the use of psychotropic medication was in her best interest.
"[C]ourts must make specific findings on relevant, contested mandatory Myers factors
23 Among those factors is "information
before ordering involuntary medication . . . ."
about alternative treatments and their risks, side effects, and benefits, including the risks
of nontreatment."24 Tonja contends that the court failed to adequately evaluate the risk
of side effects and did not make specific findings about alternatives.
But the superior court did hear and make findings about side effects. It
found that the potential "side effects noted in the petition [for medication] have not been
observed in [Tonja], who is . . . young and generally healthy." It based this finding on
testimony from Dr. Swogger, who described the measures API takes to monitor and treat
side effects and expressed an opinion that Tonja's risk for side effects was low in relation
to the benefits of medication. The court also heard testimony that Tonja had a history
of successful treatment with the requested medication, was currently improving on the
medication, hadno history ofsideeffects,and was presently experiencing no sideeffects.
The court reasonably credited that testimony.25
The superior court also properly considered and rejected alternative
treatments. During the 30-day commitment hearing, Tonja raised no potential
alternatives. Dr. Swogger testified that she was "not aware [of] any outpatient provider
23 In re Hospitalization of Lucy G. , 448 P.3d 868, 879 (Alaska 2019). The
Myers factors mirror the statutory factors for informed consent found in
AS 47.30.837(d)(2). See Myers v. Alaska Psychiatric Inst. , 138 P.3d 238, 252 (Alaska
2006).
24 Myers, 138 P.3d at 252.
25 "We grant 'especially great deference' when the [superior court's]
'findings require weighing the credibility of witnesses . . . .' " In re Hospitalization of
Danielle B., 453 P.3d 200, 202-03 (Alaska 2019) (quoting In re Hospitalization of Tracy
C., 249 P.3d 1085, 1089 (Alaska 2011)).
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or outpatient program that would take someone that has the level of need . . . that [Tonja]
has right now." During the 90-day commitment hearing, Dr. Swogger was again asked
about discharging Tonja to an outpatient treatment program, but she indicated that "no
[suitable] program exists in the state of Alaska." Despite this testimony the only
alternative that Tonja raised was the possibility of release to an assisted living facility.
The court considered and rejected this alternative, finding that no "less restrictive
available facilities" existed and that an assisted living facility would not adequately
26
protect Tonja.
V. CONCLUSION
We AFFIRMthe superior court's involuntary commitment and medication
orders.
26 Tonja also argues that the superior court erred in not making findings about
alternative medications like mood stabilizers. She also did not raise this before the
superior court, but even if she had, we would conclude there was no error. We have
described the involuntary administration of any psychotropic drug as "highly intrusive."
Myers, 138 P.3d at 241-42. We also observe that such medications may have more than
one effect, including stabilizing mood. See, e.g. , Martha Sajatovic et al., Risperidone in
the treatment of bipolar mania , 2 N EUROPSYCHIATRY DISEASE AND TREATMENT 127,
128 (2006); Konstantinos N. Fountaoulakis et al., Report of three cases that received
maintenance treatment with risperidone as a mood stabilizer , 3 A NNALS OF GEN. H OSP.
PSYCHIATRY no. 10, 2004, at 3.
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