In re Necessity for the Hospitalization of Lucy G., Supreme Court No. S-16697

• Decision Date: 13 September 2019
• Docket Number: Supreme Court No. S-16697
• Citation: 448 P.3d 868
• Parties: In the MATTER OF the Necessity for the Hospitalization of LUCY G.
• Court: Alaska Supreme Court

448 P.3d 868

In the MATTER OF the Necessity for the Hospitalization of LUCY G.

Supreme Court No. S-16697

Supreme Court of Alaska.

September 13, 2019

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.

OPINION

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 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

In March 2017 police officers found Lucy G.¹ in an Anchorage parking lot, 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 Lucy for 30 days;³ order involuntary administration of psychotropic medication;⁴ and order involuntary ECT.⁵ 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

The superior court held a contested hearing a few days later.⁶ 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 ECT treatment. The court-appointed visitor⁷ and a public defender investigator who had worked on her prior commitment cases also testified.

The Juneau psychiatrist testified that Lucy had been unresponsive to 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 intravenous-therapy fluids and a potential feeding 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 hospitalization constituted 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.

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 2016. She said that ECT is not an experimental catatonia treatment⁸ 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.

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 best interests and that no less intrusive alternative treatment is available.⁹ 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...