In re Naomi B.

• Decision Date: 11 January 2019
• Docket Number: Supreme Court Nos. S-15859/16467 (Consolidated)
• Parties: In the MATTER OF the Necessity for the Hospitalization of NAOMI B. In the Matter of the Necessity for the Hospitalization of Linda M.
• Court: Alaska Supreme Court

435 P.3d 918

In the MATTER OF the Necessity for the Hospitalization of NAOMI B. In the Matter of the Necessity for the Hospitalization of Linda M.

Supreme Court Nos. S-15859/16467 (Consolidated)

Supreme Court of Alaska.

January 11, 2019

OPINION

I. INTRODUCTION

We are presented with two separate appeals from involuntary commitment orders, brought by two appellants, one of whom also appeals a related involuntary medication order. The challenged orders expired while the respective appeals were pending; we consolidated the cases for briefing on whether to revisit our mootness jurisprudence in involuntary commitment and involuntary medication appeals. We now hold that all appeals of involuntary admissions for treatment and involuntary medication are categorically exempt from the mootness doctrine. After reviewing each case on its merits and finding no error in the orders appealed, we affirm.

II. FACTS AND PROCEEDINGS

A. Naomi B.¹

In January 2015 Adult Protective Services petitioned for an ex parte order committing Naomi B. to the Alaska Psychiatric Institute (API). She agreed to stay voluntarily and to take medication, attend groups and meetings, and plan for her discharge. But after her admission she refused to take medication or participate in treatment.

Naomi's state soon worsened. She reported being repeatedly raped, hit, and assaulted, but API found no evidence to support her allegations after conducting a physical exam and reviewing tapes from the facility's surveillance cameras. Her treating psychiatrist, Dr. David Mack, concluded that Naomi's reports were delusions caused by mental illness, and he diagnosed her with schizoaffective disorder, bipolar subtype.

Naomi never demanded to be discharged from API, and while she ate and maintained her personal hygiene, she could not or would not cooperate with API staff to plan for her discharge. Concerned that she could not manage her treatment or housing outside of API, hospital staff filed a petition later that month to involuntarily commit Naomi for 30 days. The petition alleged that Naomi was "gravely disabled and there [was] reason to believe that [her] mental condition could be improved by the course of treatment sought." API also petitioned the court to approve involuntary administration of psychotropic drugs.

That same day a magistrate judge held hearings on both petitions. Naomi was represented by an attorney at the hearings, but declined to participate in person. The court visitor² testified that Naomi had refused to meet with her, that she was therefore unable to offer an opinion about Naomi's capacity to give informed consent to medication, and that she had been unable to find any advance health care directive in Naomi's medical records.³

The court next addressed the involuntary commitment petition. Dr. Mack testified that outpatient treatment would not be adequate for Naomi because she was "at great risk for exposure to disorganized, aggressive behaviors if she's not surround[ed] by a professional staff." Dr. Mack also indicated that Naomi was "unable to engage with [API's] treatment team on basic needs due to her delusional construct" and that API had not been able to confirm that Naomi had a safe place to live. As a result he believed there was no less restrictive placement where Naomi could receive treatment. The court granted the petition, finding that Naomi was "mentally ill and, as a result, gravely disabled," and that there was no less restrictive treatment alternative.

The court then turned to the petition for court approval of administration of psychotropic medication. Dr. Mack testified that API sought to administer two medications to Naomi: olanzapine, an antipsychotic to address her delusions, and lorazepam to reduce anxiety and irritability and to treat some side effects of olanzapine. Dr. Mack acknowledged risks associated with both medications but concluded that the benefits outweighed the risks. He hoped that the medications could improve Naomi's condition within a week. He believed that Naomi had no ability to give or withhold informed consent to the administration of the medications, that the medications were in her best interests, and that there was no less intrusive means of treating Naomi's schizoaffective disorder. He also said that Naomi would be offered various forms of group treatment to help her manage her illness, but that the group therapies alone would not successfully treat Naomi's disorder. The court granted the petition for medication "with the amendment that the lorazepam [was to be administered] only as needed."

Naomi's lawyer did not question witnesses, raise objections, or make any arguments to the court.

The magistrate judge issued a written report detailing the factual and legal findings from the hearing; the superior court adopted the magistrate judge's recommended findings and signed the attached orders in February.

Naomi appeals, arguing that the superior court erred in finding that she was gravely disabled, that there was no less intrusive alternative to involuntary medication, and that forced medication was in her best interests. Naomi requests that we reverse or vacate the commitment and medication orders.

B. Linda M.

Linda M. has a history of mental health issues spanning most of her adult life. By 2016 she had exhibited paranoia and aggressive behavior, such as spitting at people, and kicking and throwing things. The Anchorage Police Department's crisis intervention team responded several times to calls from Linda's mother reporting that Linda was threatening her. The police described Linda as "agitated" and "very volatile," and they eventually arrested Linda for threatening her mother with a shovel and spitting on her. At the time Linda was already facing a criminal charge for reckless driving in connection with a car accident.

While in custody for the two criminal cases, Linda was sent to API for an evaluation and restoration of her competency to stand trial. In July 2016 API filed a petition to commit Linda for 30 days. During the commitment hearing, Linda's testimony seemed paranoid and delusional, including statements that members of a drug cartel had attempted to poison her; a psychiatric nurse practitioner testified that Linda had schizophrenia. The court found that Linda had a mental illness and as a result posed a "substantial risk of harm to others." It granted API's petition to commit Linda for up to 30 days. During her commitment, Linda voluntarily participated in therapy, but she also swore, lunged, and swung at various API staff members, raising concerns about her unpredictability and aggressive behavior. The therapy did not lead to improvement, and the efficacy of the drugs administered by API remained unclear.

In August 2016 API filed a petition to commit Linda for another 90 days and Linda requested a jury trial. During the trial Linda offered further testimony reflecting paranoid delusions. The jury unanimously found by clear and convincing evidence that Linda was mentally ill and that as a result she was "likely to cause harm to others."

Approximately one week after the jury verdict, the superior court held an evidentiary hearing on whether there was any less restrictive alternative to hospitalization at API. Various experts testified and several alternatives were explored. An API mental health clinician who was certified as an expert in API discharge planning testified that, because Linda was not taking medication as prescribed, she would not be accepted into a publicly funded assisted living home. The clinician also testified that a halfway house for formerly incarcerated individuals would not be appropriate for Linda, even in conjunction with a community support program, and that privately operated assisted living facilities would likely reject Linda because of her unpredictability and aggressiveness. An API psychiatric nurse practitioner similarly testified that Linda needed to be stabilized using medication at API before her release, that she still needed "24/7 ... supervision," and that releasing Linda into the community at that time would set her up for failure.

Finally, a clinical psychiatrist testified that Linda could be discharged to an outpatient community support program if safe housing could also be arranged for her, such as an assisted living facility or other location with professional staff that could "retain her" if she became agitated. He also discussed a closed facility, Soteria-Alaska, as a less restrictive alternative to API. He testified that Soteria-Alaska had operated for seven years in Anchorage and had offered an alternative to the psychiatric inpatient hospitalization offered at API, but one that still provided "24/7" supervision. But he testified that Soteria-Alaska was shut down due to funding issues. He opined Soteria-Alaska would have been a good option for Linda if it were still in operation.

Linda's counsel asserted during closing argument that the evidence had not established a high probability that a less restrictive alternative would be unsuccessful. Counsel also argued that Linda "ha[d] the constitutional right to a Soteria-like setting." More specifically, counsel argued that "the state cannot de-fund Soteria-Alaska and then say that because we haven't funded it, there is no less-restrictive alternative."

The superior court determined that, given the jury finding that Linda was likely to cause harm to others, "a less restrictive alternative would have to ... protect others from physical injury." The court reasoned that "none of the less restrictive alternatives that have been proposed by [Linda] or would otherwise be available will protect ... the public from the danger to others that [Linda] currently [poses]." The court explained that when Linda becomes agitated, it happens quickly, and that no less restrictive alternative was sufficient to protect the public "other than a facility like API that is locked and [that] provides 24/7 care." Finally, with regard to...