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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 of the Hospitalization of Lucy G. (9/13/2019) sp-7407

In the Matter of the Necessity of the Hospitalization of Lucy G. (9/13/2019) sp-7407

          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.us.  



                      THE SUPREME COURT OF THE STATE OF ALASKA                                    



In  the  Matter  of  the  Necessity  for  the                  )  

Hospitalization  of                                            )    Supreme  Court  No.  S-16697  

                                                               )  

             

LUCY G.                                                                                                                     

                                                               )    Superior Court No.  1JU-17-00138 PR  

                                                               )  

                                                                                        

                                                               )    O P I N I O N  

                                                               )  

                                                                                                               

                                                               )    No. 7407 - September 13, 2019  



                                                                                                            

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

                                                                                             

                     Judicial District, Juneau, Louis J. Menendez, Judge.  



                                                                                                   

                     Appearances:  Josie W. Garton, Assistant Public Defender,  

                                                                                                      

                     Callie Patton Kim, Assistant Public Defender, and Quinlan  

                                                                                                           

                     Steiner,  Public  Defender,  Anchorage,  for  Lucy  G.                                Ruth  

                                                                                                              

                     Botstein, Senior Assistant Attorney General, Anchorage, and  

                                                                                                               

                     Jahna  Lindemuth,  Attorney  General,  Juneau,  for  State  of  

                     Alaska.  



                                                                                                    

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

                                          

                     and Carney, Justices.  



                                         

                     WINFREE, Justice.  



I.         INTRODUCTION  



                     This is a case of first impression regarding an order for administration of  



                                                                                                                           

                              

electroconvulsive therapy (ECT) to a catatonic, non-consenting patient. At the superior  



                                                                                                                                     

court hearing, the parties agreed that constitutional standards established in Myers v.  



                                                                                                                                     

Alaska Psychiatric Institute for ordering involuntary, non-emergency administration of  



                                                                                                                      

psychotropic medication also apply to involuntary ECT.  The patient now argues that  


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

there should be heightened standards for ordering involuntary ECT and that, in any                                                                                                                       



event, the superior                                court's   Myers   analysis was legally deficient.                                                                        We hold                   that the   



 superior court did not plainly err by applying the existing                                                                                  Myers  constitutional standards   



to authorize involuntary ECT to the non-consenting patient.                                                                                                     We also hold that the                             



 superior court made sufficient findings related to each relevant, contested mandatory                                                                                                         



Myers   factor.     In   our   independent   judgment,  these   findings   support   the   court's  



involuntary ECT order.                                       We affirm the superior court's decision.                                        



II.              FACTS AND PROCEEDINGS                 



                 A.               Underlying Facts   

                                                                                                                                                 1 in an Anchorage parking lot,  

                                  In March 2017 police officers found Lucy G.                                                                                                                                      



wet and shivering.   She was taken to a local hospital, where she initially exhibited  

                                                                                                                                                                                                  



"agitated, self-harming, and disoriented" behaviors requiring sedation for her and the  

                                                                                                                                                                                                                   



 staff's  safety.                        Lucy,  who  was  calm but  unresponsive  by  the  end  of  the  day,  was  

                                                                                                                                                                                                                



diagnosed as catatonic.  Hospital staff also noted her prior schizophrenia diagnosis and  

                                                                                                                                                                                                                  



psychotropic medication prescriptions, as well as hospitalization the prior month. After  

                                                                                                                                                                                                              



a petition by hospital staff, the superior court authorized Lucy's hospitalization for an  

                                                                                                                                                                                                                     

involuntary commitment evaluation.2  

                                                                 

                                                                                                 



                                  Lucy was transported to a Juneau hospital for evaluation.  The hospital's  

                                                                                                     



medical  director  for  behavioral  health,  a  Juneau  psychiatrist,  diagnosed  Lucy  with  

                                                                                                                                                                                                              



catatonia. In April the psychiatrist petitioned the superior court to: involuntarily commit  

                                                                                                                                                                                                        



                 1                We use a pseudonym to protect Lucy's privacy.                                                       



                 2  

                                                                                                                                                                                                         

                                  See   AS   47.30.700(a)   (discussing   evaluation   procedure   for   initial  

                               

involuntary commitment).  



                                                                                                          -2-                                                                                                 7407
  


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

                             3                                                                                                   4  

Lucy for 30 days;              order involuntary administration of psychotropic medication;                                         and  



                                        5  

order  involuntary   ECT.                                                                                                         

                                             The  psychiatrist's  prognosis  for  Lucy's  catatonia  with  



                                                                                                                                   

psychotropic   medication   was   only   "[f]air,"  but   her   prognosis   with   ECT  was  



"[e]xcellent."  



                                                                           

           B.        Hearing Testimony Regarding Lucy  



                                                                                                                       6  

                                                                                                                                  

                     The superior court held a contested hearing a few days later.                                        The court  



                                                                                                                        

heard testimony from the petitioning Juneau psychiatrist and a Fairbanks psychiatrist  



                                                                                                                                            

who would supervise Lucy's treatment at the only facility then providing ECT in Alaska.  



                                                                                                                                     

Both psychiatrists were qualified by the court as experts in mental illness diagnosis and  



                                                                     7  

                                                                                                                                     

ECT treatment. The court-appointed visitor  and a public defender investigator who had  



                                                                        

worked on her prior commitment cases also testified.  



                                                                                                                                

                     TheJuneaupsychiatrist testified that Lucy hadbeenunresponsiveto people  



                                                                                                                                   

or tactile stimuli since her hospital admission and that she was unable to tend to her most  



                                                                                                                                     

basic needs.  The psychiatrist stated that Lucy was at risk of bed sores, pneumonia, and  



                                                                                                                                   

blood clots due to immobility; infection from urine retention; and complications from  



           3         See  AS  47.30.730(a)  (discussing  30-day  commitment  petitions).  



           4         See  AS  47.30.839  (discussing  court-ordered  medication  administration).  



           5         See  AS  47.30.825(f)  (discussing  court-ordered  ECT  administration).  



           6         See   AS   47.30.735   (discussing   30-day   commitment   petition   hearing);  



AS  47.30.839(e)  (discussing  court-ordered  medication  petition  hearing).  



           7         When  a  court  considers  a  petition  to  authorize  psychotropic  medication,  a  



"visitor"  must  be  appointed  to  "assist  the  court."   AS  47.30.839(d).   The  visitor's  duties  

include  "gather[ing]  and  provid[ing]  information  to  the  court  on  .  .  .  the  patient's  present  

condition  [and]  .  .  .  conduct[ing]  a  search  for  any  prior  'expressed  wishes  of  the  patient  

regarding   medication.'   "     Myers   v.   Alaska   Psychiatric   Inst.,   138   P.3d   238,   243-44  

(Alaska  2006)  (quoting  AS  47.30.839(d)).  



                                                                   -3-                                                            7407
  


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

                                                                                                                         

intravenous-therapy fluids and apotentialfeeding tube. The psychiatrist said that despite  



                                                                                                                                     

increasing dosages of psychotropic medication, there had been no "significant change."  



                                                                                                                        

The psychiatrist explained that improvements from psychotropic medication usually  



                                                                                                                         

occur within the first week: "[I]f you don't see an improvement within those first several  



                                                                                                                             

days, you're not likely to see much of anything after that."  The psychiatrist noted that,  



                                                                                                                         

compared to Lucy's prior hospitalizations,this hospitalizationconstituted Lucy's longest  



                                                                                                                           

documented  unresponsiveness  and  the  time  between  hospitalizations  had  been  



                    

decreasing.  



                                                                                                                    

                    The Juneau psychiatrist testified to an 80% to 90% chance of improving  



                                                                                                                         

Lucy's catatonia with ECT.   The psychiatrist discussed ECT's common side effects,  



                                                                                                                             

including headache, jaw pain, muscle aches, and dental issues.  The psychiatrist also  



                                                                                                                 

explained that, although some people complain of memory loss, formal neurological  



                                                                                                                              

comparisons before and after  ECT show patient "memory  is actually better."                                                 The  



                                                                                                                        

psychiatrist believed that ECT was Lucy's least restrictive treatment alternative because  



                                                                                                               

her  catatonia  was  worsening  every  day,  she  was  not  responding  to  psychotropic  



                                                                                                                        

medication, and there was a risk that without treatment the catatonia would become  



                                                                                                                               

irreversible.  The psychiatrist stated that if Lucy had been living in any other state, her  



                                                                                                           

doctors would have considered ECT to treat her catatonia six months earlier.  



                    The Fairbanks psychiatrist had not yet examined Lucy but had consulted  



                                                                                                                        

with the Juneau psychiatrist. The Fairbanks psychiatrist testified that she would conduct  



                                                                                                                            

an independent evaluation prior to administering ECT.  She agreed that, because Lucy  



                                                                                                                               

was "essentially paralyzed from her psychiatric illness," the standard of care called for  



                                                

immediate ECT treatment, the "gold standard treatment for catatonia."  The Fairbanks  



                                                                                                                             

psychiatrist  estimated  that  significant  results  from  ECT  could  be  seen  within  nine  



                                                                                                                

treatments and that sustained benefits could require continued outpatient treatment.  



                                                               -4-                                                         7407
  


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

                                                                                Like the Juneau psychiatrist, the Fairbanks psychiatrist expected that a                                                                                                                                                                                                                                                                                                                                                                   



patient's memory would improve after ECT. But the Fairbanks psychiatrist noted ECT's                                                                                                                                                                                                                                                                                                                                                                                                         



 other potential side effects, including the "approximately 1 in 10,000" chance of death,                                                                                                                                                                                                                                                                                                                                                                                                      



 as well as risks related to the required anesthesia:                                                                                                                                                                                                                                                   stroke, heart attack, and blood clots.                                                                                                                                                                                            



Like   the   Juneau   psychiatrist,   the   Fairbanks   psychiatrist   ultimately   believed   that  



involuntary ECT was the least restrictive treatment available to ensure Lucy's safety and                                                                                                                                                                                                                                                                                                                                                                                                                      



was in her best interests.                                                                                                                            The Fairbanks psychiatrist repeatedly testified that if at any                                                                                                                                                                                                                                                                                         



point during the commitment Lucy regained capacity, the psychiatrist would defer to                                                                                                                                                                                                                                                                                                                                                                                                                                    



Lucy whether to continue treatment.                                                                                                                                                                                         



                                                                                The public defender investigator testified that Lucy's only next of kin, her                                                                                                                                                                                                                                                                                                                                                     



 significant other, had passed away in July 2016. The court visitor testified that "the court                                                                                                                                                                                                                                                                                                                                                                                                        



 [was] at a disadvantage because they haven't been                                                                                                                                                                                                                                                                             able to                                          see"   Lucy's "dramatic"   



 condition.  The visitor stated that Lucy is "gravely disabled, and in need of help.  And  



it doesn't seem like the courses of treatment that have been utilized to date have been                                                                                                                                                                                                                                                                                                                                                                                                               



 effective for her or sustained over any period of time."                                                                                                                                                                                                                                                                                 



                                        C.                                      Hearing Testimony Regarding ECT In Alaska                                                                                                                                                                                                                



                                                                                Hearing   testimony  discussed   the   basics   of   ECT   treatment.     ECT   is  



performed under general anesthesia.                                                                                                                                                                                         A patient receives "the lowest amount of energy                                                                                                                                                                                                               



required to have an effective seizure" through electrodes placed on the head.                                                                                                                                                                                                                                                                                                                                                                                                  Doctors  



monitor the patient's vital signs and brain waves during the procedure, and a "bite block"                                                                                                                                                                                                                                                                                                                                                                                                  



is held in place in the patient's mouth.                                                                                                                                                                                              



                                                                                The   Fairbanks   psychiatrist   testified  that   she   had   received   specialized  



training prior to opening Fairbanks Memorial Hospital's ECT treatment center in August                                                                                                                                                                                                                                                                                                                                                                                                   



                                                                                                                                                                                                                                                           -5-                                                                                                                                                                                                                                          7407
  


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

                                                                                                                                                                                                                                                                                                                         8  

2016. She said that ECT is not an experimental catatonia treatment                                                                                                                                                                                                                                                            and that Alaska has                                                         



"had it in the past, but . . . it's been several years since anyone in the state had a running                                                                                                                                                                                                                                                                                 



program."  She said that the ECT center was inspected by a national accrediting body,                                                                                                                                                                                               



was deemed to have "zero deficiencies," and was "identified . . . as a best practice                                                                                                                                                                                                                                                                                              



 [institute] for other facilities around the country that have ECT programs."                                                                                                                                                                                                                                                                                         She noted  



that by the time of Lucy's hearing, the ECT center had provided approximately 200 ECT                                                                                                                                                                                                                                                                                                              



treatments to 11 voluntary patients.  Lucy would be the ECT center's first involuntary                                                                                                                                                                                                                                                      



patient.    



                                D.                              Superior Court's Findings And Conclusions; This Appeal                                                                                                                                                                                                       



                                                               The superior court found                                                                                                          by  clear and convincing evidence that Lucy                                                                                                                                                   



 suffered   from   a   mental   illness,   was   gravely   disabled,   and   lacked   capacity   to   give  



informed   consent.     The   court   also   found   by   clear   and   convincing   evidence   that  



involuntary ECT was in Lucy's best interests and that there was "no other reasonable                                                                                                                                                                                                                                                                                  



alternative in conjunction with the administration of psychotropic drugs."                                                                                                                                                                                                                                                                                            The court   



considered the psychiatrists' testimony, citing ECT's "80 to 90 percent response rate"                                                                                                                                                                        



and side effects including "muscular pain, clenched jaw, [and] dental issues." The court                                                                                                                                                                                                                                                                                                         



 found "[t]here may be some issues in terms of, again, one's heart; but there's no evidence                                                                                                                                                                                                                                                                                     



of death.                                  And what's been given to me in terms of ECT is the fact that the negatives are                                                                                                                                                                                                                                                                                  



 far, far, far less than the positives."                                                                                                                                         The court ordered the 30-day commitment and                                                                                                                                                                          



granted the petitions for involuntary psychotropic medication and ECT.                                                                                                                                                                                                                                                                                 



                                                               Lucy appeals only the ECT order, arguing that the superior court erred by                                                                                                                                                                                                                                                                     



determining that ECT was in her best interests and by determining that ECT was the least                                                                                                                                                                                                                                                                                                            



intrusive alternative treatment available to her.                                                                                                                                                                               



                                8  

                                                                                                                                                                                                                                                                                                                                                                       

                                                                Cf.  AS  47.30.830(a)  (prohibiting  experimental  treatments  involving  

                                                                                                                                                                                                                       

"significant risk of physical or psychological harm").  



                                                                                                                                                                                                       -6-                                                                                                                                                                                         7407  


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

III.	           DISCUSSION  



                                                                                                                                                                                                   

                A.	              Applying The Existing Myers Best Interests Factors - As The Parties  

                                                                                                     

                                 Agreed - Was Not Plain Error.  



                                                                                                                                                                               

                                 In Myers v. Alaska Psychiatric Institute we held that - in non-emergency  



                                                                                                                                                                                                                  

situations - a court may not authorize administration of psychotropic medications to a  



non-consenting patient without first determining that the medication is in the patient's  



                                                                                                                                                                                   9  

                                                                                                                                                                                                    

best interests and that no less intrusive alternative treatment is available.                                                                                                            The parties  



                                                                                                                                                                                                    

agreed at the commitment hearing that the superior court should apply the Myers factors  



                                                                                                                                                                                                 

to determine whether to order involuntary ECT for Lucy.  But in her appellate briefing  



                                                                                                                                                            

Lucy advocates - for the first time - that an additional layer of protection for court- 



                                                                                                                                                                                     

ordered ECT is merited on the ground that ECT is a greater intrusion than psychotropic  



                                                                                                                                                                                         

medication to a patient's autonomy.  Because Lucy did not argue for this heightened  



                                                                                                                                                                   10  

                                                                                                                                                      

standard in the superior court, we review her claim for plain error. 



                9                138 P.3d at 239 ("[I]n the absence of emergency, a court may not authorize                                                                                   



the state to administer psychotropic drugs to a non-consenting mental patient unless the                                                                                                                     

court determines that the medication is in the best interests of the patient and that no less                                                                                                               

intrusive alternative treatment is available.");                                                              see also            AS 47.30.915(11) (defining "least                                    

restrictive alternative" as "no more harsh, hazardous, or intrusive than necessary to                                                                                                                          

achieve the treatment objectives of the patient; and . . . involv[ing] no restrictions on                                                                                                                     

physical   movement   .   .   .   except   as   reasonably   necessary   for   the   administration   of  

treatment or the protection of the patient or others from physical injury").                                                                                    



                 10              Wereviewunpreserved claims for plain error. Plain error exists when there  

                                                                                                                                                                                                         

is an " 'obvious mistake' that is 'obviously prejudicial.' "   In re Hospitalization of  

                                                                                                                                                                                                               

Gabriel C., 324 P.3d 835, 838 (Alaska 2014) (first quoting Adams v. State , 261 P.3d 758,  

                                                                                                                                                                                                          

773 (Alaska 2011);  then quoting State, Dep't of Revenue, Child Support Enf't Div. ex  

                                                                                                                                                                                                               

rel. P.M. v. Mitchell, 930 P.2d 1284, 1288 (Alaska 1997)).  

                                                                                                                               



                                                                                                       -7-	                                                                                             7407
  


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

                      In  Myers  we held that a patient's "right to refuse to take psychotropic drugs                               



                            11  

is   fundamental."                                                                                                                       

                                  We  now  likewise  hold  that  a  patient's  right  to  refuse  ECT  is  



                                                                                                                                

fundamental. We have held that "[w]hen a law places substantial burdens on the exercise  



                                                                                                                               

of a fundamental right, we require the state to 'articulate a compelling' [state] interest'  



                                                                                                                                         12  

                                                                                                                                              

and to demonstrate 'the absence of a less restrictive means to advance [that] interest.' " 



Because administering involuntary ECTburdens a patient's fundamental rights, the state  

                                                                                                                                     



must:        (1)  articulate  a  compelling  interest  in  administering  involuntary  ECT;  and  

                                                                                                                           



(2) demonstrate that involuntary ECT administration is the least restrictive means to  

                                                                                                                                         



advance that compelling interest.  

                                         



                      We "readily agree[d]" in Myers that "the state's parens patriae  obligation  

                                                                                                                            



does give it a compelling interest in administering psychotropic medication to unwilling  

                                                                                                                             

                                                         13   But we could not categorically answer when less  

mental patients in some situations."                                                                                                   

                                        

restrictive means exist.14  We instead stated that before such treatment could be ordered,  

                                                                                                                               



an independent judicial determination of the patient's best interests must be made to  

                                                                                                                                         



ensure that the proposed treatment actually is the least restrictive means of protecting the  

                                                                                                                                        

patient.15  



                      Although we held that considering a patient's best interests is required as  

                                                                                                                                         



part of the superior court's determination whether involuntary medication is the least  

                                                                                                                                     



           11         138  P.3d  at  248.  



           12        Id.  at  245-46  (second  and  third  alterations  in  original)  (first  quoting  Ranney  



v.  Whitewater  Eng'g,  122  P.3d  214,  222  (Alaska  2005);  then  quoting  Sampson  v.  State,  

31  P.3d  88,  91  (Alaska  2001)).  



           13        Id. at 249.  

                                



           14        Id.  

                            



           15        Id. at 250.  

                                



                                                                    -8-                                                             7407
  


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

restrictive   means   to   advance   the   state's   compelling   interest,   we   subsequently   have  



                                                           16  

separated these inquiries.                                                                                                                                                      

                                                                We now clarify that for a particular treatment - involuntary  



                                                                                                                                                                                 

medication or ECT - to be the least restrictive means to advance the state's compelling  



                                                                                                                                                                                                    

interest, the superior court must find it both to be in the patient's best interests and the  



                                                                                                   

least intrusive treatment option available.  



                                                                                                                                                                                           

                               In Bigleyv.Alaska PsychiatricInstitute weexplained that the Myers inquiry  



                                                                                                                                                                                                   

balances  "the  fundamental  liberty  and  privacy  interests  of  the  patient  against  the  



                                                                                                                     

compelling state interest under its parens patriae  authority to 'protect "the person and  

                                                                                                                                  17  This constitutional balancing  

                                                                                                                                                                                    

property" of an individual who "lack[s] . . . capacity." ' " 



test is a "fact-intensive inquiry" because,  "[a]lthough the state cannot intrude on a  

                                                                                                                                                                                                       



fundamental right where there is a less intrusive alternative, the alternative must actually  

                                                                                                                                                                                         



be available, meaning that it is feasible and would actually satisfy the compelling state  

                                                                                                                                                                                                

interests that justify the proposed state action."18                                                                  We recently reiterated in Kiva O. v.  

                                                                                                                                                                                                       



State,  Department  of  Health  & Social  Services,  Office  of  Children's  Services  that  

                                                                                                                                                                                                 



                16             See In re Hospitalization of Linda M.                                                    , 440 P.3d 168, 176 (Alaska 2019)                                    



(considering   best   interests   analysis   and   stating   that   the   "record   also   supports   the  

independent conclusion that there were no less intrusive alternatives to involuntary                                                                                           

medication");  Kiva O. v. State Dep't of Health &Soc. Servs. Office of Children's Servs.                                                                                                                 ,  

408   P.3d  1181,  1190-92   (Alaska   2018)   (discussing   inquiries   separately);   In   re  

Hospitalization of Jacob S.                                     , 384 P.3d 758, 772 (Alaska 2016) (discussing best interests                                                            

but not least intrusive alternative);                                           Bigley v. Alaska Psychiatric Inst.                                          , 208 P.3d 168, 185-                

 88 (Alaska 2009) (discussing inquiries separately).                                         



                17             208 P.3d at 185 (alteration in original) (quoting Myers, 138 P.3d at 249).  

                                                                                                                                                                                              



                18             Id.  

                                        



                                                                                                  -9-                                                                                          7407
  


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

"[a]ssessing the feasibility and likely effectiveness of a proposed alternative is in large                                                              

part an evidence-based factual inquiry by the trial court."                                                19  



                         Lucy argues that in addition to - or despite - the Myers fact-intensive,  

                                                                                                                                       



no-less-intrusive-alternative inquiry, we should hold as a matter of law that ECT is more  

                                                                                                                                                         



intrusive than psychotropic medication, and, therefore, that involuntary ECT can be  

                                                                                                                                                             



administered as a last resort only when psychotropic medication will not suffice.  We  

                                                                                                                                                           



                                                                                                                                                           20  

find Lucy's argument flawed on two bases:  First, her reliance on Matter of C.D.M.,                                                                            a 

                                                                                                                                                                



case predating Myers by 25 years, to create this heightened standard is misplaced; and  

                                                                                                                                  



second, her request that we rule ECT categorically is more intrusive than psychotropic  

                                                                                                                                          



medication is misdirected - that is a question for the legislature.  

                                                                                                                            



                         In  C.D.M. we held that a court could not order involuntary sterilization  

                                                                                                                                            



unless   the   patient's   incapacity   was   permanent   and   the   procedure   "absolutely  

                                                                                                                                           

necessary."21  Lucy asserts, based on this holding, that a court can order involuntary ECT  

                                                                                                                                                          



only as a last resort and not to "circumvent a patient's refusal to take psychotropic  

                                                                                                                                         



medication when competent."  But we premised our decision in C.D.M. on the fact that  

                                                                                                                                                           



"[s]terilization necessarily results in the permanent termination of the intensely personal  

                                                                                                                                                  

right to procreate."22                  ECT, unlike sterilization, is not designed to permanently abridge  

                                                                                                                                                    



a fundamental right.  Court-ordered mental health treatment is statutorily limited to 30  

                                                                                                                                                             



days;  extending  beyond  that  time  requires  a  new  court  hearing  and  constitutional  

                                                                                                                                        



             19          408 P.3d at 1191 (alteration in original) (quoting                                         Bigley, 208 P.3d at 185).           



            20  

                                                                   

                         627 P.2d 607 (Alaska 1981).  



            21  

                                              

                         Id. at 613.  



            22  

                                    

                         Id. at 612.  



                                                                             -10-                                                                       7407
  


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

              23  

inquiry,           and such treatment may not be provided to any person who has regained                                                      



                                                                                      24  

capacity   to   consent   to   or  decline   treatment.                                                                                                  

                                                                                             Because  ECT  is  not  designed  to  



                                                                                                                                                        

permanently abridge a fundamental right, we decline to apply our C.D.M. holding in this  



context.  



                                                                                                                                                          

                        We also reject Lucy's policy argument that we should hold as a matter of  



                                                                                                                                                   

law that ECT is more intrusive than psychotropic medications.  This substantive policy  

                                                                                                     25   We recognized in Myers that  

                                                                                                                                                        

decision rests squarely within the legislature's province. 



many  states  "have  equated  the  intrusiveness  of  psychotropic  medication  with  the  

                                                                                                                                                       

intrusiveness of [ECT]."26  And nothing in our current statutory scheme evinces a clearly  

                                                                                                                                                 



contrary legislative intent.  

                                                  



                        Although Title 47 of the Alaska Statutes differentiates between treatment  

                                                                                                                                             



methods   in   crisis   situations   -   authorizing   only   psychotropic   medication   in  

                                                                                                                                                        

emergencies27  - there is no indicated preference for psychotropic medication in non- 

                                                                                                                                                      



crisis  situations.   And under AS 47.30.772, evaluation and treatment facilities "may  

                                                                                                                                                    



administer  medication  or  other  treatment  to  an  involuntarily  committed  patient"  

                                                                                                                                              



consistent  with  other  statutory  provisions.                                      (Emphasis  added.)                     Within  the  "other  

                                                                                                                                                  



            23          See  AS 47.30.730-.770.   



            24          See  AS47.30.825(f) ("Apatientcapableofgivinginformedconsent has the                                                             



absolute right to accept or refuse [ECT]. . . .                                 A patient who lacks substantial capacity to                                

make this decision may not be given [ECT] without a court order . . . .").  

                                                                                                                               



            25           Cf. State v. Native Vill. of Nunapitchuk, 156 P.3d 389, 395-96 (Alaska  

                                                                                                                                                

2007) ("The constitution . . . commits the enactment of all substantive law . . . to the  

                                                                                                                                                        

legislature, acting by an affirmative vote of the majority of each house." (citing Alaska  

                                                                                                                                                 

Const. art. II,  14)).  

                             



            26           138 P.3d 238, 242 (Alaska 2006).  

                                                                           



            27          AS 47.30.838(a).  

                                



                                                                           -11-                                                                     7407
  


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

statutory   provisions"   referenced,   a   court   may   order   ECT   for   a   "patient   who   lacks  



                                                                                                                                28  

substantial capacity" to decide whether to "accept or refuse [ECT]."                                                                              

                                                                                                                                     These provisions  



                                                                                             

plainly allow for court-ordered, non-emergency involuntary ECT.  We therefore leave  



                                                                                                                             

to the legislature whether a treatment hierarchy generally should exist.  



                                                                                                                                                                

                          Having dismissed Lucy's two arguments for a heightened standard, we are  



                                                                                                                                                                

unpersuaded that the superior court made an "obvious mistake" by applying only the  



                                                                                                                                           

protective Myers analysis - which the parties agreed applied - to this case.  



                                                                                                                                             

             B.	          The Superior Court Did Not Err By Determining That Involuntary  

                                                                                                                                                       

                          ECT  Was  The  Least  Restrictive  Means  To  Advance  The  State's  

                                                                                                

                          Compelling Interest In Protecting Lucy.  



                                                                                                                                                              

                         As part of Lucy's overall challenge to the superior court's finding that  



                                                                                                                                                

involuntary  ECT  was  the  least restrictive  means  to  advance  the  state's  compelling  



                                                                                                                                                               

interest in protecting her, she challenges the sufficiency of the court's best interests and  



                                                                                                                                                         

least intrusive alternative findings  under Myers .                                                She first faults  the court's nearly  



                                                                                                                                                              

illegible, cursory written findings.  But because the court also provided extensive oral  



                                                                                                                                                             

findings  and  conclusions  of  law  at  the  commitment  hearing,  we  analyze  its  oral  



                 29  

findings.                                                                                                                                               

                     Lucyalso challenges thecourt'sultimatebestinterestsdetermination, arguing  



                                                           

that the court misweighed the factors.  



                                                                                                                                                  

                          We first explain why the Myers best interests and least intrusive alternative  



                                                                                                                                                           

determinations  are  mixed  questions  of  fact  and  law  and  that  we  will  review  these  



                                                                                                                                                     

determinations by exercising our independent judgment.  We then clarify our previous  



                                                                                                                                                             

decisions and discuss why express findings on each relevant, contested Myers  best  



             28          AS 47.30.825(f).   



             29          See Noey v. Bledsoe                    , 978 P.2d 1264, 1276 (Alaska 1999) (concluding that                                           



superior court "made detailed oral findings of fact and conclusions of law[, and b]ecause                                                            

its findings [were] sufficient to permit appellate review, further written findings and  

                                                                                                                                                               

conclusions were unnecessary").     



                                                                               -12-	                                                                        7407
  


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

interests factor are needed to ensure a patient's due process rights are protected and to   



facilitate appellate review.                                             We finally evaluate the superior court's findings regarding                                                                          



both best interests andleastintrusivealternatives                                                                               to determinewhether thecourt's factual                                                



findings are clearly erroneous and whether, as a matter of law, the court erred in its                                                                                                                                          



conclusions.       



                                    1.	              We   exercise   our   independent   judgment   when   reviewing  the  

                                                      superior court's best interests and least intrusive alternative                                                                                   

                                                      findings                    as          part              of         its         overall                  least             restrictive                        means  

                                                      determination.  



                                    Our   fundamental   holding   in   Myers   was   that,   in   light   of   the   Alaska  



Constitution's liberty and privacy guarantees, the existing statutory framework for non-                                                                                                                                   



emergency,involuntary                                           treatmentwith                          psychotropicmedications                                             could beconstitutional   



                                                                                                                                                        30  

only if it were overlaid with certain patient protections.                                                                                                                                                                   

                                                                                                                                                                 Specifically, we held that  



                                                                                                                                                                                                                          

(1) before such treatment could be ordered, an independent judicial determination must  



                                                                                                                                                                                                                            

be  made  about  (a)  whether  such  treatment  was  in  the  patient's  best  interests,  and  



                                                                                                                                  31  

                                                                                                                                                                                                                                 

(b) whether any less intrusive alternatives exist;                                                                                       and (2) the appropriate standard of  



                                                                                                                                                                            32  

                                                                                                                                                                                  

proof for these determinations is clear and convincing evidence. 



                                                                                                                                                                                                                      

                                    We emphasized in Myers that whether a patient's best interests are served  



                                                                    

by involuntary treatment ultimately "presents a constitutional question," the answer to  



                                                                                                                                                                                                             

which "must take the form of a legal judgment" hinging "on constitutional principles  



                  30                138 P.3d at 245-52, 254;                                            see Bigley v. Alaska Psychiatric Inst.                                                              , 208 P.3d   



 168, 180 (Alaska 2009) ("Under the standards we announced in                                                                                                                Myers, constitutional  

guarantees of liberty and privacy require the court to find by clear and convincing                                                                                                                     

evidence that the involuntary administration of psychotropic medication is in the best                                                                                                                                      

interests of the patient and that no less intrusive alternative treatment is available.").                                                                                                      



                  31               Myers, 138 P.3d at 250, 252.  

                                                                                                     



                  32               Id. at 253.  

                                                   



                                                                                                              -13-	                                                                                                       7407
  


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

                                                                                                                                                               33  

aimed at protecting individual choice" rather than on medical expertise.                                                                                             In  Bigley,  



although we did not reach the moot best interests question, we stated that "[t]he inquiry                                                                                   



into whether there is a less intrusive alternative itself is a mixed question of fact and law"                                                                                    



and that the ultimate determination must be founded on an "evidence-based factual                                                                                           

                                                                                                                                                                               34     In  

inquiry" into the feasibility and efficacy of any proposed alternative treatment.                                                                                                     



                                                                                                                                                                                   35  

Kiva O. we stated that we review each inquiry as a mixed question of fact and law. 

                                                                                                                                                                                        



                             But we have done little to explore the nature of mixed questions of fact and  

                                                                                                                                                                                    



law in non-jury cases when the difference between underlying factual findings and  

                                                                                                                                                                                   

ultimate legal determinations is not clearly defined,36  and we therefore are left with the  

                                                                                                                                                                                     



question how to actualize review of these determinations.  Sometimes we say broadly  

                                                                                                                                                                          



that we review the superior court's factual findings for clear error and legal conclusions  

                                                                                                                                                                  

                   37     Sometimes we say that we review the superior court's factual findings for  

de novo.                                                                                                                                                                             

       



               33            Id.  at  250.  



               34            208  P.3d  at   185.  



               35            408 P.3d   1181,   1186   (Alaska  2018).   We   cited  In  re  Hospitalization of  



Jacob  S.,  384  P.3d  758,  763-64,  772  (Alaska  2016),  for  this  proposition  with  respect  to  

the  best  interests  determination,  but  it  appears  that  in  Jacob  S.  we  actually  treated  both  

determinations   as   questions   of   fact  reviewed  under  the   clearly   erroneous   standard   of  

review.   See  id.  at  769,  772.   



               36            Cf. Alaska R. Civ. P. 52.  The Supreme Court has stated that the federal  

                                                                                                                                                                            

version  of  Civil  Rule  52  does  not  "furnish  particular  guidance  with  respect  to  

                                                                                                                                                                                      

distinguishing law from fact."  Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S.  

                                                                                                                                                                                  

485, 501 (1984) (quoting Pullman-Standard v. Swint, 456 U.S. 273, 288 (1982)).  And  

                                                                                                                                                                                  

federal Rule 52 "applies to findings of fact, including those described as 'ultimate facts'  

                                                                                                                                                                                

because they may determine the outcome of the litigation."  Id.  

                                                                                                                                            



               37            See,  e.g.,  Lindbo  v.  Colaska, Inc.,  414  P.3d  646,  651  (Alaska  2018)
  

                                                                                                                                                                              

(quoting Ben M. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 204
  

                                                                                                                                                                                   

                                                                                                                                                              (continued...)
  



                                                                                         -14-                                                                                   7407
  


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

clear error but review de novo the application of those facts to the relevant articulated                                                     



        38  

law.                                                                                                                                                         

              But these statements do nothing more than state the obvious when there is an  



                                                                                                                                                   

easily determinable difference between the underlying factual findings and the ultimate  



                                                                                                                                           

legal determination.  For example, if there is significantly defined law, a party might  



                                                                                                                                                  

assert on appeal that the superior court: (1) made erroneous underlying factual findings;  



                                                                                                                                                  

(2) applied the wrong law or wrongly characterized the correct law; or (3) wrongly  



                                                                                                                                                       

applied the correct law to the underlying factual findings.  The first alleged error seems  



                                                                                                                                                       

one of fact, reviewed for clear error, while the latter two alleged errors seem legal,  



                                                                                                                                                      

reviewed de novo. This is not out of the ordinary fromtypical appellate review of factual  



                                               39  

                                                    

and legal determinations. 



             37          (...continued)  



                                                                                                                                                       

P.3d 1013, 1018 (Alaska 2009)); Joy B. v. State, Dep't of Health & Soc. Servs., Office  

                                                                                                                                                       

of Children's Servs., 382 P.3d 1154, 1162 (Alaska 2016) (quoting Sherry R. v. State,  

                                                                                                                                                    

Dep't of Health &Soc. Servs., Office of Children's Servs., 332 P.3d 1268, 1274 (Alaska  

                                                                                                                                                              

2014)); Brown v. Knowles, 307 P.3d 915, 923 (Alaska 2013) (quoting Dashiell R. v.  

                                                                                                                                                          

State, Dep't of Health & Soc. Servs., Office of Children's Servs., 222 P.3d 841, 849  

                 

(Alaska 2009)).  



             38          See, e.g., In re Hospitalization of Naomi B.,435 P.3d 918, 923-24 (Alaska  

                                                                                                                                                                    

2019) (quoting Jacob S. , 384 P.3d at 763-64); Sherman B. v. State, Dep't of Health &  

                                                                                         

Soc. Servs.,Office of Children's Servs., 310 P.3d 943, 949 (Alaska 2013) (quoting M.W.  

                                                                                                                                                        

v. State, Dep't of Health & Soc. Servs., 20 P.3d 1141, 1143 (Alaska 2001)); Martin N.  

                                                                                                                                                

v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 79 P.3d 50, 53  

                                                                                                                                                             

(Alaska 2003).  

                 



             39          See  generally  HARRY    T.    EDWARDS    &    LINDA   A.   ELLIOTT,    FEDERAL  

                                                      

STANDARDS OF REVIEW: REVIEW OF DISTRICT COURT DECISIONS AND AGENCY ACTIONS  

                                                                                                                                                  

7-9 (3d ed. 2018) (discussing fact/law paradigm and its limitations).                                    



                                                                             -15-                                                                       7407
  


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

                     AstheUnitedStates              SupremeCourt           has recognized, "[m]ixed questionsare   



                     40  

not all alike."                                                                                                                    

                         A truly mixed question of fact and law appears when controlling law is  



                                                                                                                                    

not so definitely defined, but rather involves abstract legal concepts "more akin to a  



                                                                                                                

general  guide  for  the  exercise  of  considered  judgment,"  so  that  the  determination  

                                                                                            41   "[T]hese rules generally  

                                                                                                                                       

"generally def[ies] ready categorization as either law or fact." 



acquire  meaning,  over  time,  through  judicial  application  to  the  circumstances  of  

                                                                                                                                  

particular cases" and "may gain meaning through repeated judicial interpretation."42                                             In  

                                                                                                                                   



this context theSupremeCourtappliesafunctional analysis, focusing primarily on which  

                                                                                                                             

court is in the best position to decide the issue.43                        The Supreme Court has said:  

                                                                                                                          



                     A  finding  of  fact  in  some  cases  is  inseparable  from  the  

                                                                                                            

                     principles through which it was deduced.  At some point, the  

                                                                                                             

                     reasoning by which a fact is "found" crosses the line between  

                                                                                                     

                     application of those ordinary principles of logic and common  

                                                                                                    

                     experience which are ordinarily entrusted to the finder of fact  

                                                                                                            

                     into the realm of a legal rule upon which the reviewing court  

                                                                                                          

                     must exercise its own independent judgment. Where the line  

                                                                                                            

                     is drawn varies according to the nature of the substantive law  

                                                                                                            

                     at issue.  Regarding certain largely factual questions in some  

                                                                                                         

                     areas of the law, the stakes - in terms of impact on future  

                                                                                                        



          40         U.S.   Bank   Nat'l   Ass'n   ex   rel.   CWCapital   Asset   Mgmt.   LLC   v.   Vill.   at  



Lakeridge,  LLC,   138  S.  Ct.  960,  967  (2018).  



          41         EDWARDS  &  ELLIOTT,  supra  note  39,  at  8.  



          42        Id .  



          43        Id .  at  14  (citing  Miller  v.  Fenton,  474  U.S.  104,  114  (1985));  see  also  Meyer  



v.  State,  368  P.3d 613, 6           19-20  (Alaska  App.  2016)  (considering  "what  the  real-world  

consequences  would  be  if  .  .  .  appellate  courts  adopted  a  'clearly  erroneous'  standard  of  

review  versus  a  'de  novo'  standard  of  review").  



                                                               -16-                                                          7407
  


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

                                  cases and future conduct - are too great to entrust them                                                                                    

                                  finally to the judgment of the trier of fact.                                                              [44]  



As noted above, some constitutional questions involve "stakes [that] . . . are too great"  

                                                                                                                                                                                                              

for deferential review, thereby requiring more than the judgment of a single judge.45                                                                                                                                   In  

                                                                                                                                                                                                                        



these contexts the Supreme Court has stated that it "is not bound by the conclusions of  

                                                                                                                                                                                                                        



lower courts, but will reexamine the evidentiary basis on which those conclusions are  

                                                                                                                                                                                                                      

founded."46  



                                  For example, both we and the Supreme Court examine de novo the mixed  

                                                                                                                                                                                                              



questions of law and fact presented by certain criminal probable cause and reasonable  

                                                                                             

suspicion determinations.47  The"principal components"ofthesedeterminations are"the  

                                                                                                                                                                                                                   



events which occurred leading up to the stop or search, and then the decision whether  

                                                                                                                                                                                                         

these historical facts . . . amount to reasonable suspicion or to probable cause."48  

                                                                                                                                                                                                                  The  



second part of this analysis - whether the facts amount to reasonable suspicion or to  

                                                                                                                                                                                                                         



                 44               Bose Corp. v. Consumers Union of U.S., Inc.                                                                              , 466 U.S. 485, 501 n.17                               



(1984) (applying independent review to determine existence of actual malice in First                                                                                                                             

Amendment defamation action);  see  EDWARDS  & E                                                                                    LLIOTT,  supra  note 39, at 8 (noting                                

de novo review is needed "when the interests at issue are deemed too important to trust                                                                                                                           

to the judgment of a single district judge constrained by 'the logistical burdens' of the   

trial process, . . . but rather are thought better addressed through the 'reflective dialogue'                                                                                                        

and 'collective judgment' characteristic of appellate courts" (quoting                                                                                                        Salve Regina Coll.                 

v.  Russell, 499 U.S. 225, 231-32 (1991))).                                          



                 45               Bose Corp., 466 U.S. at 501 n.17.  

                                                                                                            



                 46               Id. at 509-10 (quoting Time, Inc. v. Pape, 401 U.S. 279, 284 (1971)).  

                                                                                                                                                                                               



                 47               Ornelas v. United States, 517 U.S. 690, 697, 699 (1996); State v. Joubert,  

                                                                                                                                                                                                        

20 P.3d 1115, 1119 (Alaska 2001).  

                                                                          



                 48               Ornelas, 517 U.S. at 696.  

                                                                                         



                                                                                                          -17-                                                                                                   7407
  


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

                                                                                                                          49  

probable cause - "is a mixed question of law and fact."                                                                        The Supreme Court has stated                          



that independent appellate review is appropriate for this analysis because "the legal rules                                                                                            



for probable cause and reasonable suspicion acquire content only through application.                                                                                                              



Independent review is therefore necessary if appellate courts are to maintain control of,                                                                                                  

                                                                             50  The Supreme Court reasoned that "de novo review  

and to clarify, the legal principles."                                                                                                                                            

tends to unify precedent and will come closer to providing . . . a defined 'set of rules.' "51  

                                                                                                                                                                                                   



                              For similar reasons, this exacting de novo review standard applies in the  

                                                                                                                                                                                          



present context, particularly in light of our precedent regarding involuntary commitment  

                                                                                                                                                                      



and medication declaring "Alaska's constitutional guarantee of individual liberty to be  

                                                                                                                                                                                            

more protective" than its federal counterpart.52   We therefore clarify that we will review  

                                                                                                                                                                                  



de novo the superior court's decisions and use our independent judgment to determine  

                                                                                                                                                                           



whether, based on underlying factual findingsmadeby the superior court, there was clear  

                                                                                                                                                                                       



and convincing evidence that involuntary ECT was in Lucy's best interests and was the  

                                                                                                                                                                                           



               49             Id.  



               50             Id.  at  697.  



               51             Id.     We   similarly   stated   in   Naomi   B.   that   we   will   review   involuntary  



commitment  cases  despite  their  mootness  because  our  opinions  "will  likely  be  useful  as  

guidance  by   analogy   to   future   commitment  proceedings   .   .   .   .   [D]eclining   review   of  

commitment  appeals  based  on  mootness  effectively  deprives  trial  courts  of  guidance  on  

how  to  apply  the  statutory  requirements  to  the  facts  of  individual  cases."   435  P.3d  918,  

928-29  (Alaska  2019).   



               52             See Myers v. Alaska Psychiatric Inst., 138 P.3d 238, 245 (Alaska 2006).  

                                                                                                                                                                                 



                                                                                            -18-                                                                                      7407
  


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

                                                                                         53  

least intrusive available treatment.                                                           But we will review the underlying factual findings                                                            



involved in these inquiries for clear error.                                                   



                                   2.	              The   superior   court   properly   considered   and   made   findings  

                                                     about the                  Myers-based best interests factors.                                        



                                   We held in                    Myers  that superior courts "should consider" five statutorily                                                                         



derived factors to determine whether involuntary psychotropic medication is in the "best                                                                                                                             

                                                           54       We said that "[c]onsidering these factors will be crucial in  

interests of a patient."                                                                                                                                                                                                     

establishing the patient's best interests."55                                                                   These mandatory factors are:  

                                                                                                                                                                                   



                                   (A) an explanation of the patient's diagnosis and prognosis,  

                                                                                                                                                                    

                                   or  their  predominant  symptoms,  with  and  without  the  

                                                                                                                                                                                     

                                   medication;  



                                                                                                                                                                         

                                   (B) information about the proposed medication, its purpose,  

                                                                                                                                                                                           

                                   the method of its administration, the recommended ranges of  

                                                                                                                                                                                     

                                   dosages, possible side effects and benefits, ways to treat side  

                                                                                                                                                                           

                                   effects,  and  risks  of  other  conditions,  such  as  tardive  

                                   dyskinesia;  



                                                                                                                                                                  

                                   (C) a review of the patient's history, including medication  

                                                                                                                                        

                                   history and previous side effects from medication;  



                                                                                                                                                                       

                                   (D) an explanation of interactions with other drugs, including  

                                                                                                                                                                      

                                   over-the-counter drugs, street drugs, and alcohol; and  



                  53               See id.           at 250 ("[T]hough the [best interests] answer must be fully informed                                                                                  



by medical advice received with appropriate deference, in the final analysis the answer                                                                                                                         

must take the form of a legal judgment that hinges not on medical expertise but on                                                                                                                                         

constitutional principles aimed at protecting individual choice.").                                                                              



                  54               Id. at 252.  

                                                  



                  55	              Id.  

                                            



                                                                                                            -19-	                                                                                                    7407
  


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

                        (E)  information about alternative treatments and their risks,                                   

                                                                                                                                     [56]  

                        side effects, and benefits, including the risks of nontreatment.                                                   



                        Although in Myers  we did not explicitly state that superior courts must  

                                                                                                                                                 



make  specific  findings  on  each  factor,  we  later  noted  in  In  re  Hospitalization  of  

                                                                                                                                                      



Gabriel C. - albeit in passing - that such findings are required:   "We take th[e]  

                                                                                                                                                 



occasion to note that the superior court must expressly make or incorporate specific  

                                                                                                                                            



findings on  each of these best interests factors in a case where involuntary medication  

                                                                                                                                      

is requested."57              But despite referring to the Myers  factors, in Gabriel C. we actually  

                                                                                                                                            

recited the favored, but not mandatory, "Minnesota factors."58  

                                                                                             



                        We  recently  clarified  in  In  re  Hospitalization  of  Naomi  B.  that  our  

                                                                                                                                                   



Gabriel C. opinion "misquoted Myers as making the Minnesota factors mandatory" but  

                                                                                                                                                     



that  it  otherwise  did  "not  alter  the  analytical  framework  established  by  Myers  and  

                                                                                                                                                   



            56          Id.  (quoting  AS  47.30.837(d)(2)).  



            57          324  P.3d  835,  840  (Alaska  2014).   



            58          Id.  In addition  to  establishing  the  mandatory  Myers  factors,  in  Myers  we  



favorably   referred   to   five   factors   that   are   "sensible"   in   a   court's   best   interests  

determination.   These  favored  but  not  mandatory  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  and  the  pain  

                        connected  with  the  treatment.  



Myers,  138  P.3d  at  252  (citing  Price  v.  Sheppard,  239  N.W.2d  905,  913  (Minn.  1976)).  



                                                                         -20-                                                                    7407
  


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

                59  

Bigley."    We explained that the helpful Minnesota factors provide " 'sensible' guidance                                                             



 in determining whether involuntary medication is in a patient's best interests, but they     

 are not a mandatory component of the analysis."                                              60  



                                                                                                                                                              

                          We now find it prudent to clarify and emphasize that superior courts must  



                                                                                                                                                       

make specific findings on relevant, contested mandatory Myers factors before ordering  

                                                             61  Because consideration of the Myers factors ultimately  

                                                                                                                                                    

 involuntary medication or ECT. 



may  allow  a  court  to  deny  a  patient's  fundamental  right  to  refuse  psychotropic  

                                                                                                                                             

medication or ECT,62 we emphasize the importance of such findings to both patient due  

                                                                                                                                                                



process and appellate judicial review.  

                                                                            



                          In this case, Lucy specifically challenges the superior court's findings as  

                                                                                                                                                                   



they relate to what really are the Minnesota factors.  But, as noted above, the court's  

                                                                                                                                                         



 considerations and findings under the Myers factors are dispositive.  And on the facts of  

                                                                                                                                                                   



this case, the court's considerations and findings relevant to what would be contested  

                                                                                                                                                     



Minnesota factors  are encompassed within its findings relevant to contested Myers  

                                                                                                                                                          



 factors.   We therefore review only the court's consideration of Lucy's best interests  

                                                                                                                                                      



under the relevant, contested Myers  factors.  We note that appellate review generally  

                                                                                                                                                     



would benefit from a superior court specifically matching its best interests findings to  

                                                                                                                                                                   



 each respective Myers factor. But in this case the superior court's oral ruling adequately  

                                                                                                                                                  



reflects its various findings related to each Myers factor.  

                                                                                                              



             59           435 P.3d 918, 935 (Alaska 2019).                     



             60           Id.   (quoting   Bigley   v.   Alaska   Psychiatric   Inst.,   208   P.3d   168,   180-81  



                 

 (Alaska 2009)).  



             61           See Alaska R. Civ. P. 52(a) ("In all actions tried upon the facts without a  

                                                                                                                                           

jury . . ., the court shall find the facts specially and state separately its conclusions of law  

                                                                                                                                                                

 . . . .").  

                



             62           Myers, 138 P.3d at 251-52.  

                                                                



                                                                               -21-                                                                          7407
  


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

                                     a.	         Factor   1:     explanation   of   the   patient's  diagnosis   and  

                                                 prognosis  



                        The first        Myers  best interests factor requires the superior court to consider                                  



"thepatient's diagnosis and prognosis, or their predominant symptoms, with and without                                                           



                              63  

the medication."                                                                                                                                        

                                     The superior court explained that Lucy suffered from catatonia and  



                                                                                                                                                      

that she was "entirely unable to care for her basic needs." The court also considered both  



                                                                                                                                                

psychiatrists' testimony and found that ECT would improve Lucy's condition because  



                                                                                                                              

it  has  a  "80  to  90  percent  response  rate."                                  The  court  also  found  expeditious  ECT  



                                                                                                                                                             

necessary because Lucy could be lost: "I believe based on the facts that we have here . . .  



                                                                                                                                                

her body is shutting down essentially that we may lose this young soul in the process  



                                                         

because of our failure to act."  



                                                                                                                                                  

                        Lucy argues the court's finding that she would die without ECT was clearly  



                                                                                                                                         

erroneous. Shecontends testimony demonstrated that shewould die without intravenous  



                                                                                                                                                     

fluids and nutritional supplements, not that she would die without ECT. But as the State  



                                                                                                                                                

argues, the court's statement that "we may lose this young soul" without ECT appears  



                                                                                                                                                  

to refer to losing Lucy to a permanent catatonic state, not death.   The court earlier  



                                                                                                                                                        

referred  to  the psychiatrists'  testimony  and  found that "what I'm hearing  from the  



                                                                                                                                                      

doctors is the fact that . . . if something isn't done to deal with her situation and to alert  



                                                                                                                                                         

her to what's going on, we may lose her as an individual."  The record supports this; the  



                                                                                                                                                                

Juneau psychiatrist testified that if untreated, Lucy's catatonia could be irreversible:  



                                                                                                                                              

"The longer that you let catatonia go on, the harder it becomes to treat, and it becomes  



                                                                                                                           

more of a pervasive illness.  And my fear for her is that she will essentially become  



                                                                                                                                                        

stuck, and we won't be able to reverse this." The Juneau psychiatrist further testified that  



                                                                                                                                                      

with ECT there was an 80% to 90% chance Lucy would improve, but that without ECT  



            63  

                                    

                        Id. at 252.  



                                                                           -22-	                                                                          7407  


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

her prognosis was "[e]xtremely poor," requiring a feeding tube and resulting in pressure                                                                                       



sores, pneumonia, or blood clots that could lead to further complications.  The court's     



factual finding that Lucy could be lost without treatment is thus supported by the record.                                                                                        



                                             b.             Factor 2:              information about the proposed treatment                                       



                              Second, the superior court must look to "information about the proposed                                                  



medication, its purpose, the method of its administration, the recommended ranges of                                                                                                         



dosages, possible side effects and benefits, ways to treat side effects, and risks of other                                                                                           



                           64  

conditions."                                                                                                                                                                           

                                  The court incorporated into its findings the testimony about how ECT  



                                                                                                                                                                             

would beapplied to Lucy, explaining that ECTwasnecessary to counteract her catatonia,  



                                                                                                                                                                                          

that  it  would  be  administered  in  Fairbanks  by  a  psychiatrist  who  had  studied  the  



                                                                                                                                                                                       

procedure with out-of-state specialists, that it would be administered for only 30 days  



                                                                                            

before requiring a renewed hearing, and that side effects could include muscular pain,  



                                                                                                                                                                                           

clenched jaw, and dental and cardiac issues.  These findings are fully supported by the  



                                            

testimonial record.  



                                                                                                                                                                                      

                              Lucy faults the superior court's findings for failing to consider "how many  



                                                                                                                                                                                          

times Lucy  would  need to  be subjected  to ECT to  experience improvement in  her  



                                                                                                                                                                                      

symptoms, or how long that improvement was likely to last."  She argues that the court  



                                                                                                                                                                   

failed to consider that if she regained capacity during or following the court-ordered  



                                                                                                                                                                                           

treatment, she might not consent to continuing ECT, and the long-term effects of the  



                                                                          

treatment would not be realized.  



                                                                                                                                                                                             

                              These arguments are unpersuasive.  The court did consider the duration of  



                                                                                                                                                                                              

Lucy's ECT by ordering ECT for 30 days and that "whether it's extended or not . . .  



                                                                                                                                                                                 

limits the amount of time in which the sessions can occur." Testimony was that patients  



                                                                                                                                                                             

typically undergo two to three treatments a week, and that after three weeks of treatment  



               64             Id.  



                                                                                            -23-                                                                                              7407  


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

Lucy likely would experience "benefits that are sustained more than 24 hours."                                                                                                             This is   



correct under the statutory scheme upon which                                                                 Myers  is premised:                            The court could not                    



order medication beyond the commitment period without reviewing a renewed request                                                                                                          



                                            65  

for such treatment.                               



                               And, as the State argues, whether Lucy would consent to further ECT if she  

                                                                                                                                                                                                   



regained capacity is speculative.   Lucy's conceded "history of noncompliance with  

                                                                                                                                                                                                 



treatment recommendations following release" does not invalidate or contradict the  

                                                                                                                                                                                                    



superior court's findings because any long-term treatment plan for her catatonia, not just  

                                                                                                                                                                                                    



ECT, would require continued compliance with a treatment plan following release, as  

                                                                                                                                                                                                       



evidenced by Lucy's prior treatment plans requiring continued psychotropic medication  

                                                                                                                                                                                  



prescriptions.  

                                   



                               Lucy also argues that the court failed to consider potential memory and  

                                                                                                                                                                                                   



cognitive impairment resulting from ECT.  Although testimony noted claims of short- 

                                                                                                                                                        



term memory loss directly following the procedure, both physicians stated that memory  

                                                                                                                                                                                         



typically improves following ECT.  Lucy additionally argues that the court erroneously  

                                                                                                                                                                                



found "no evidence of death" as a potential ECT side effect.  Testimony indicated that  

                                                                                                                                                                                                   



ECT's potential side effects included an "approximately one in 10,000" chance of death,  

                                                                                                                                                                                              



as well as nausea, physical injuries (such as electrode burns or fractures from inadequate  

                                                                                                                                                                                   



sedation), and any side effects of the general anesthesia required before an ECT patient  

                                                                                                                                                                                            



undergoes the procedure. Anesthesia's risks include stroke, heart attack, and pulmonary  

                                                                                                                                                                                   



embolism.  The court said there was "no evidence of death" after expressly considering  

                                                                                                                                                                                 



both ECT and anesthesia's potential side effects and weighing the pros and cons of  

                                                                                                                                                                                                      



ordering ECT.  The court said it gave "major deference" to the psychiatrists' testimony,  

                                                                                                                                                                                    



                65             See  AS 47.30.839(h) (requiring facility wishing to continue involuntary                                                                         



medication administration after commitment period ends to "file a request to continue                                                                                            

the medication when it files the petition to continue the patient's commitment").                                                                                                              



                                                                                                 -24-                                                                                           7407
  


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

and clearly assessed the "one in 10,000" chance of death as negligible enough to find "no                                                                                                                 



evidence of death." And even if the court erred by failing to make more specific findings                                                                                                      



on memory loss and evidence of the "one in 10,000" chance of death, any error is                                                                                                                              



harmless in light of the court's overall finding about side effects:                                                                                           "[T]he negatives are                        



far, far, far less than the positives."                     



                                                 c.              Factor 3:                 review of the patient's history                             



                                 Third, the superior court must "review . . . the patient's history, including                                                                              



                                                                                                                                                          66  

medication history and previous side effects from medication."                                                                                                                                           

                                                                                                                                                                The court found that  



                                                                                                                                                                                                       

Lucy previously had been given psychotropic medications but that each time "she's back  



                                                                                                                                                                        

in [the] hospital again and again."  Her previous treatment methods "ha[d]n't worked  



                                   

sufficiently."  



                                                                                                                                                                                                            

                                Lucy argues that the superior court "disregarded [her] prior history of  



                                                                                                                                                                                                  

recovery and the likelihood that she would regain competency" and "disregarded Lucy's  



                                                                                                                                                                                     

history of treatment noncompliance and the possibility that she had been prematurely  



                                                                                                                                                                                                      

dismissed."  But these arguments are unavailing.  The court considered Lucy's prior  



                                                                                                                                                                                                            

history  and  treatment  noncompliance,  incorporating  the  doctors'  testimony  into  its  



                                                                                                                                                                                                         

findings and stating that "their concern is so heightened based on historical data and  



                                                                                                                                                                                                

based on this patient."  The court stated, "I'm concerned that as each treatment module  



                                                                                                                                                                                       

ends, another begins, and the time between each is shorter and shorter . . . . [T]here's  



                                                                                                                                                                            

nothing  else  available  out  there  that  has  worked."                                                                            The  court  also  considered  the  



                                                                                                                                                                                               

likelihood that Lucy would regain capacity, finding it "unlikely she [would] achieve  



                                                                                                                                                                                                         

improvementwith onlytheadministration of[psychotropicmedication]." Thecourt thus  



                                                                                                                                                                                          

appropriately considered and made sufficient findings on Lucy's history, all supported  



                                    

by the record.  



                66  

                                                                                            

                                Myers, 138 P.3d at 252.  



                                                                                                    -25-                                                                                                       7407  


----------------------- Page 26-----------------------

                                  d.         Factor 4:          interaction with other medications        



                       Fourth, the superior court must consider "interactions with other drugs,                               



                                                                                                              67  

including   over-the-counter  drugs,   street   drugs,   and   alcohol."                                                                

                                                                                                                     The  court  found  



                                                                                                                                               

necessary administering both ECTand psychotropic medications to Lucy. Lucy does not  



                                                                                                                                             

contest  the  court's  order  for  psychotropic  medication  or  raise  concerns  about  the  



                                                                  

medication's combination with ECT.  



                                                                                                                        

                                  e.         Factor 5:  information about alternative treatments  



                                                                                                                              

                       Finally,thesuperiorcourtmustconsider and makefindingson"information  



                                                                                                                                             

about alternative treatments and their risks, side effects, and benefits, including the risk  



                              68  

                                                                                                                                          

of nontreatment."                 The court discussed potential alternatives, stating, "I thought about  



                                                                                            

perhaps delaying my decision . . . I don't think that's going to be the way to go in this  



case."  The court also discussed using only medication to treat Lucy, stating  that "the  



                                                                                                                                        

alternatives that have been suggested as continuation of . . . drugs have not been proven  



                                                                                                                          

to be successful in the past, and I doubt they'll be proven successful in the future."  In  



                                                                                                                                            

conformance  with  this  factor,  the  court  discussed  Lucy's  prior  commitments  and  



                                                                                                                                             

treatments, found that she was not responding to the psychotropic medications she was  



                                                                                                                                                     

being given, and found that expeditiously administered ECT was her only real option.  



                                                                                                                                 

The court thus appropriately considered and made findings about alternative treatments.  



                                                                                               

                                  f.         Conclusion regarding best interests  



                                                                                                                                        

                       Lucy argues that the superior court's ultimate determination that ECT's  



                                                                                                                                        

"negatives are far, far, far less than the positives" fails to properly weigh the Myers  



           67         Id.   



           68         Id .  



                                                                      -26-                                                                     7407  


----------------------- Page 27-----------------------

                                                                                                                                           69  

factors.     But   Myers   "does   not  dictate   the   weight   the   court   gives"   each   factor.                                          



                                                                                                                                      

Reviewing the underlying findings regarding Lucy's best interests, wehold that the court  



                                                                                                                                 

considered all relevant, contested Myers best interests factors and that its factual findings  



                                                                                                                                      

were not clearly erroneous. Taking those factual findings as true, we agree with the court  



                                                                                                                                   

that ordering involuntary ECT was - by clear and convincing evidence - in Lucy's  



                         

best interests.  



                                                                                                                                      

                      3.	        The   superior   court   properly   considered   and   found   that  

                                                                                                                                 

                                 involuntary ECT was Lucy's least intrusive treatment option.  



                                                                                                                                

                      We next consider whether involuntary ECT was Lucy's least intrusive  



                                                                                                                                           

treatment option.  In Bigley we clarified that any proposed alternative "must actually be  



                                                                                                                                       

available, meaning that it is feasible and would actually satisfy the compelling state  



                                                                             70  

                                                                                                                                

interests that justify the proposed state action."                               Lucy argues that other, less intrusive  



                                                                                                                                

alternatives were available to her; for example, the superior court could have extended  



                                                                                                                                          

her commitment or authorized a different psychotropic medication. Lucy argues that the  



                                                                                                                                    

superior court failed to consider treatment only with psychotropic medication before  



                                                                                                                                    

ordering involuntary ECT.  She states that the court should have waited another month  



                                                                                                                                

to see if psychotropic medication would work before considering ECT.  She contends  



                                                                                                                                       

that because she had regained capacity within a month during prior commitments, from  



                                                                                                                                        

either  medication  or  spontaneously,  "the  court  should  have  considered  what  the  



                                                                                                                                           

probability was that Lucy might regain competency during her 30-day commitment or  



                                                                                                                                          

some time after so that she could be asked whether she wanted to submit to ECT."  



                                                                                                                                      

                      But  the  superior  court  considered  these  options  and  explained  their  



                                                                                                                                        

rejection.  The court considered whether to permit Lucy to remain on medication and  



           69         Kiva O. v.       State, Dep't of         Health &Soc.            Servs. Office of Children's Servs.,  



408 P.3d 1181, 1190 (Alaska 2018).                



           70         208 P.3d 168, 185 (Alaska 2009).  

                                                                    



                                                                    -27-	                                                             7407
  


----------------------- Page 28-----------------------

make the ECT determination at a later date:                                                                                                                                                                                                  "I guess what the court can do is delay this                                                                                                                                                                        



process for a period of time to see if [medications will] work.                                                                                                                                                                                                                                                                                     But my concern is that                                                                                      



 each day we wait, each day [Lucy] may be get[ting] worse and that's what I hear from                                                                                                                                                                                                                                                                                                                                                                     



this doctor.                                                    And the time span is collapsing."                                                                                                                                                          



                                                                         The court's finding that Lucy's condition was unaffected by psychotropic                                                                                                                                                                                                                                                              



medication is supported by the record and not clearly erroneous. The                                                                                                                                                                                                                                                                                                          Juneau psychiatrist  



testified  that   the   medication   administered   to   Lucy   during   each   prior   catatonia  



 commitment   was   increasingly   less   effective,   and   that,   in   the   week  of   her   present  



 commitment, there had been no significant change in her condition, despite an increasing                                                                                                                                                                                                                                                                                                                                     



 dosage.   The Juneau psychiatrist concluded that due to Lucy's historic and current lack                                                                                                                                                                                                                                                                                                                                                                      



 of response to the medication any significant improvement was "highly unlikely."                                                                                                                                                                                                                                                                                                                                                                            The  



Fairbanks psychiatrist                                                                                                  agreed that psychotropic                                                                                                             medication alone would not be sufficient                                                                                                                              



to improve Lucy's catatonic state.                                                                                                                                                         



                                                                         The court's finding that Lucy's condition was quickly deteriorating and                                                                                                                                                                                                                                      



required immediate action also is supported by the record and not clearly erroneous.                                                                                                                                                                                                                                                                                                                                                                                                       



This was Lucy's third catatonic episode in six months; the longer this persisted, the more                                                                                                                                                                                                                                                                                                                                                                



likely it was that she would remain in a permanent catatonic state.                                                                                                                                                                                                                                                                      



                                                                         The superior court did not clearly err in its underlying findings regarding                                                                                                                                                                                                                                                                            



whether involuntary ECT was Lucy's least intrusive treatment option.                                                                                                                                                                                                                                                                                                                                    Taking those   



 factual   findings   as   true,   we   agree   with   the   court   that     - by                                                                                                                                                                                                                                                                          clear   and   convincing  



 evidence   -   involuntary   ECT   was   Lucy's   least   intrusive   treatment   option   because  



 alternatives would not "actually satisfy the compelling state interests that justify the                                                                                                                                                                                                                                                                                                                                                                          

proposed state action."                                                                                                      71  



                                     71                                 Id.  



                                                                                                                                                                                                                                 -28-                                                                                                                                                                                                                                                7407  


----------------------- Page 29-----------------------

                                       4.                  Summary and conclusion                        



                                       The superior court considered and did not clearly err in its findings about                                                                                                                           



all relevant, contested                                           Myers-based best interests factors, and we agree that ordering                                                                                                    



involuntary ECT was in Lucy's best interests based on those factual findings.                                                                                                                                                        And the   



superior court considered and did not clearly err in its findings about potentially lesser                                                                                                                                                   



intrusivealternativetreatmentoptions;becausepsychotropicmedication alonewould                                                                                                                                                                       not  

"actually satisfy the compelling state interests that justify the proposed state action,"                                                                                                                                                                72  



                                                                                                                                                                                                                                    

we hold, as a matter of law, that the superior court did not err in its overall least intrusive  



                                                                                                                                                                                                                                                  

alternative determination.  Because ordering involuntary ECT was both in Lucy's best  



                                                                                                                                                                                                                                                

interests and the least intrusive treatment option available, we hold that it was the least  



                                                                                                                                                                                                                      

restrictive means to advance the state's compelling interest in protecting Lucy.  



IV.                 CONCLUSION  



                                                                                                                                                                                               

                                       We AFFIRM the superior court's involuntary ECT order.  



                    72                 Id.  



                                                                                                                         -29-                                                                                                                              7407  

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