Date: 01-17-2007

Case Style: Roslyn Wetherhorn v. Alaska Psychiatric Institute

Case Number: S-11939

Judge: Fabe

Court: Supreme Court of Alaska on appeal from the Judicial District Anchorage

Plaintiff's Attorney: Laura C. Bottger, Assistant Attorney General, Anchorage, and David W. Márquez, Attorney General, Juneau, for Appellee.

Defendant's Attorney: James B. Gottstein, Law Project for Psychiatric Rights, Inc., Anchorage, for Appellant.

Description:

Roslyn Wetherhorn appeals two superior court orders: one approving her involuntary commitment for thirty days and the other approving the non-consensual administration of psychotropic medication. Wetherhorn challenges the constitutionality of the statute relied on by the court to order her involuntary commitment. She also raises due process and evidentiary challenges to both orders. We conclude that the commitment statute is constitutional if construed to require a level of incapacity so substantial that the respondent cannot survive safely in freedom. And because the other related challenges to the commitment order are either improperly preserved or without merit, we affirm the granting of the petition for thirty-day commitment. But because the master's action in granting a petition for the administration of psychotropic medication before a visitor's report had been prepared or provided constitutes plain error, we vacate the order granting that petition.

II. FACTS AND PROCEEDINGS

On April 4, 2005, Dr. M. Lee of Valley Hospital initiated an application for the examination of Wetherhorn pursuant to AS 47.30.705. Alaska Statute 47.30.705 allows a person to be taken into custody and delivered to the nearest evaluation facility.1 in a "manic state[,] homeless and non medication compliant x 3 months" in support of the petition. Superior Court Judge Philip Volland granted the petition the same day.

Also on April 5, 2005, Dr. McKean and Dr. Laurel Silberschmidt filed a petition for thirty-day commitment, averring that Wetherhorn was mentally ill and as a result was both "likely to cause harm to [herself] or others" and "gravely disabled." The supporting facts were stated as "[m]anic state[,] homeless and no insight and non med compliant x 3 months." No prospective witnesses were listed in the space provided. The case was assigned to Superior Court Judge John Suddock and to Probate Master John E. Duggan.

On April 15, 2005, Dr. Jan Kiele filed a petition for the administration of psychotropic medication. Master Duggan issued a notice of hearing and order for appointment of court visitor on the same day, appointing the Office of Public Advocacy (OPA) as court visitor and the Public Defender Agency as counsel for Wetherhorn. This notice also set the hearing on the involuntary medication petition for 1:30 p.m. that same afternoon. As a result, the hearings on both the petition for thirty-day commitment and the petition for the administration of psychotropic medication were held on the same day.

The combined hearing on April 15, 2005 lasted approximately fifteen minutes. During this hearing, the psychiatrist who testified was not separately sworn or qualified as an expert because his qualifications were carried over from a previous case. There was no oral or written report presented by the court visitor as required under AS 47.30.839(d).3

On April 27, 2005, Judge Suddock issued written orders granting both petitions, nunc pro tunc to April 15, 2005. This appeal followed.

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Wetherhorn challenges both the petition for thirty-day commitment and the petition for the administration of psychotropic medication. Wetherhorn also raises a claim of ineffective assistance of counsel and challenges the qualifications and testimony of the witness in the hearing on both petitions. We first address Wetherhorn's constitutional, procedural, and evidentiary challenges to the petition for thirty-day commitment. We then address Wetherhorn's challenges to the petition for the administration of psychotropic medication. Finally, we address the claims of ineffective assistance of counsel and alleged errors in the admission of witness testimony.

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Outcome: We conclude that the definition of “gravely disabled” in AS 47.30.915(7)(B) is constitutional if construed to require a level of incapacity so substantial that the respondent is incapable of surviving safely in freedom. And because we conclude that Wetherhorn’s other challenges to the petition for thirty-day commitment and to the conduct of counsel and the swearing in and qualification of the witness are without merit, we AFFIRM the superior court’s order granting that petition. But because we conclude that the failure to provide a visitor’s report during the hearing on a petition for the administration of psychotropic medication as required by AS 47.30.839(d) is an instance of plain error, we VACATE the order granting that petition. Although no further proceedings are required because Wetherhorn’s case is moot, we hold that in future non-emergency cases, a court may not grant a petition for the administration of psychotropic medication unless a visitor’s report is properly prepared and presented in the hearing.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: None