In re Mabel B.

• Decision Date: 07 May 2021
• Docket Number: Supreme Court Nos. S-17292/17335 (Consolidated)
• Citation: 485 P.3d 1018
• Parties: In the MATTER OF the Necessity for the Hospitalization of MABEL B. In the Matter of the Necessity for the Hospitalization of Sarah D.
• Court: Alaska Supreme Court

485 P.3d 1018

In the MATTER OF the Necessity for the Hospitalization of MABEL B. In the Matter of the Necessity for the Hospitalization of Sarah D.

Supreme Court Nos. S-17292/17335 (Consolidated)

Supreme Court of Alaska.

May 7, 2021

Renee McFarland, Assistant Public Defender, and Beth Goldstein, Acting Public Defender, Anchorage, for Mabel B. and Sarah D.

Laura E. Wolff, Assistant Attorney General, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for State of Alaska.

Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and Carney, Justices.

OPINION

STOWERS, Justice.

I. INTRODUCTION

Two women were hospitalized following psychiatric emergencies. In each instance hospital staff petitioned the superior court for an order authorizing hospitalization for evaluation, and the superior court granted the order. But the women were not immediately transported for evaluation because no beds were available at Alaska Psychiatric Institute (API). Each woman eventually brought a motion for a review hearing to determine whether continued detention in a hospital was proper; in each case the superior court allowed continued detention. The women were finally transported to API more than 14 calendar days after their initial detentions. On appeal they argue that their continued detention before being moved to API for evaluation violated their due process rights. We agree.

II. FACTS AND PROCEEDINGS

A. Statutory Framework And The Capacity Of Mental Health Facilities In Late 2018

Alaska law provides procedures for the involuntary commitment of certain individuals with mental illness.¹ Any adult can petition the superior court alleging that another individual "is reasonably believed to present a likelihood of serious harm to self or others or is gravely disabled as a result of mental illness."² If the court finds there is "probable cause to believe the respondent is mentally ill and that condition causes the respondent to be gravely disabled or to present a likelihood of serious harm to self or others," it may issue an ex parte order and direct a peace officer to "deliver the respondent to the nearest appropriate facility for emergency examination or treatment."³ Alternatively, in the case of an emergency:

A peace officer ... who has probable cause to believe that a person is gravely disabled or is suffering from mental illness and is likely to cause serious harm to self or others of such immediate nature that considerations of safety do not allow initiation of involuntary commitment procedures set out in AS 47.30.700, may cause the person to be taken into custody and delivered to the nearest evaluation facility. ... The peace officer or mental health professional shall complete an application for examination of the person in custody and be interviewed by a mental health professional at the facility.^{[4 ]}

A mental health professional and physician at the evaluation facility must evaluate the respondent within 24 hours of arrival.⁵ If the mental health professional "has reason to believe that the respondent is (1) mentally ill and that condition causes the respondent to be gravely disabled or to present a likelihood of serious harm to self or others, and (2) is in need of care or treatment," then the mental health professional must petition for an ex parte order under AS 47.30.700 authorizing hospitalization for evaluation;⁶ this petition is evaluated under the probable cause standard.⁷

Upon receiving an order authorizing hospitalization for evaluation, the facility "shall accept the order and the respondent for an evaluation period not to exceed 72 hours."⁸ While the relevant statutes do not explicitly create any time limits between the ex parte order and transport to the facility, we have held that the statutory framework "evidence[s] a legislative intent that the respondent who is subject to an emergency ex parte order must be transported immediately to the nearest evaluation facility so that the 72-hour evaluation period can begin without delay."⁹ During the 72-hour evaluation period, two mental health professionals at the facility may petition for a 30-day commitment to a treatment facility.¹⁰ If the court receives such a petition, it must hold a hearing to determine whether the 30-day commitment is warranted by clear and convincing evidence.¹¹

The 72-hour evaluations are done only at certain designated facilities.¹² In 2018 API in Anchorage, Bartlett Regional Hospital in Juneau, and Fairbanks Memorial Hospital were designated facilities.¹³ API is the largest of these designated facilities.¹⁴ As of October 2018 API had a physical capacity of 80 beds: 50 for adult acute care, 10 for adolescent care, 10 for long-term adult care, and 10 for forensic care. But the "functional capacity is inextricably linked to staffing levels," and there are severe shortages in staffing. The full nursing staff would require 118 psychiatric nursing assistants and 74 nurses; API had 72 nursing assistants and 33 nurses in October 2018.¹⁵

B. Mabel's Involuntary Commitment Proceedings

Mabel¹⁶ suffers primarily from dementia. In October 2018, on the day she was supposed to move to Arkansas with her daughter, Mabel allegedly refused to go to the airport and started walking from her daughter's home in Anchor Point toward Homer. According to the emergency petition, she was found by an Alaska State Trooper on the roadside. The officer brought her to Central Peninsula Hospital and filed an emergency detention notice and evaluation application.¹⁷

That evening, a mental health professional at Central Peninsula filed an evaluation petition.¹⁸ A few hours later, at 12:25 a.m. on October 10, a magistrate judge issued an order authorizing hospitalization for evaluation,¹⁹ finding that there was probable cause to believe that Mabel was mentally ill and gravely disabled. The court ordered that the State "shall arrange for [Mabel's] immediate delivery" to the first available bed at API, Bartlett Regional Hospital, or Fairbanks Memorial Hospital for examination and evaluation. It required daily status reports until Mabel was transported to an evaluation facility, which had to include Mabel's location, the reasons for the delay in transport, steps the State was taking to ensure continued detention was necessary, and any other evaluation options.

Mabel was not immediately transported because "[t]he authorized evaluation facility d[id] not have capacity to accept the respondent." On October 24, 14 calendar days after the order authorizing evaluation, Mabel requested a review hearing, arguing that she no longer met the criteria for involuntary commitment or, if she did, that she should be evaluated immediately. Relying on In re Hospitalization of Gabriel C. ,²⁰ she asserted that "[a]n immediate hearing is needed to address the question of whether continued detention is warranted and whether there is a less restrictive alternative available." In its response, the State indicated that it was "earnestly and actively working on trying to improve th[e] situation [at API] through a number of different approaches." It provided to the court a report with its plans for decreasing delays, stating it had hired additional staff and was considering adding more units and opening beds at other facilities.

The court held a review hearing on October 26 to address "whether continued detention [was] warranted." Mabel argued "that her substantive due process rights ha[d] been violated by being held for 17 days without review" and that the court should apply the clear and convincing evidence standard to determine whether continued detention was proper. A consulting psychologist from Central Peninsula testified that "[Mabel's] condition ha[d]n't changed" and that the hospital had no reason to petition the court to withdraw the order. The psychologist was "skeptical that the treatment [at API] will be fruitful" but asserted that Central Peninsula could not perform an evaluation.

The court issued an order later that day stating that the burden was on the State to show that Mabel "still meets criteria for evaluation upon a review being requested due to delay." The court noted that the statute did not specify what standard is proper for review hearings before transportation to the evaluation facility, presuming that "the current shortage of placements and resulting delay in transportation were not contemplated when the statutes were enacted." The court determined that the review hearing was more similar to an ex parte hearing than a commitment proceeding and thus applied the probable cause standard, finding that standard had been met.²¹ The court stated it

has real misgivings about [Mabel's] predicament. A court order is not being followed, and as a result, transportation and evaluation has been delayed beyond any reasonable expectation, without any steps toward improving her mental health, through absolutely no fault of her own and without her consent. Although neither party raised the question directly, the Court has asked itself whether dismissal of the case is the remedy for this transgression of a respondent's rights, based simply on the fundamental constitutional liberty interests at stake when transportation is delayed. This analysis in turn requires a standard of determination of the timeframe for an unacceptable delay, since our statutes and case law do not address it.

But the court ultimately "decline[d] to reach these larger issues in this particular case" and found probable cause "to justify a 72-hour evaluation."

Mabel was transported to API later in the day on October 26. API personnel evaluated Mabel and released her on October 30, finding that she no longer met the commitment criteria.

C. Sarah's Involuntary Commitment Proceedings

On December 17, 2018, Sarah was brought to Mat-Su Regional Medical Center by emergency medical services after an overdose. She initially stated she had attempted suicide, but later denied memory of overdosing. She had a history of depression and...