Pursuant toAS 47.30.735(c),(d) and (e), the court must determine by clear and convincing evidence if: (1) that the respondent is mentally ill; and (2) that as a result of that mental illness is likely to cause harm to the respondent or others [(AS 47.30.915(10)(A)] or is gravely disabled AS 47.30.915(B) and with respect to a gravely disabled respondent that there is reason to believe that the respondent’s mental condition could be improved by the course of treatment sought and there is no viable less restrictive alternative available. AS 47.30.735(d)
Relevant Statues/Rules/Cases/Forms AS 47.30.725-.735
Wetherhorn v. API, 156 P.3d 371 (Alaska 2007) Humphrey v. Cady, 405 U.S. 504 (1972)
Addington v.. Texas, 441 U.S. 418, 425 (1979) O’Connor v. Donaldson, 422 U.S. 563 (1975)
DeNuptiis v. Unocal, 63 P.3d 272, 278(Alaska 2003) Evidence Rule 702. Testimony by Experts
Evidence Rule 703. Basis of Opinion Testimony Experts Wayne B. v. API, Supreme Court, S-12677, August 29, 2008 AK Rule of Probate 2 Appointment and Authority of Masters FORMS
MC-200 Notice of 30-Day Commitment Hearing MC-310 Order for 30-DayCommitment
MC-325 Order of Dismissal of Petition for Commitment MC-505 Motion for Dismissal of Petition
MC-506 Affi davit in Support of Motion to Dismiss Petition PETITION AS 47.30.730
Must be signed by
• 2mental health professionals who have examined the petitioner (1 must be a physician.) AS 47.30.730 (a).
The petition must allege
• specifi c facts and specifi c behavior that supports a
conclusion that the respondent is mentally ill and as a result is likely to cause
harm to self or others or is gravely disabled AS 47.30.730(a) (1) & (7).
The petition must allege that the evaluation staff has considered but has not found •
that there are any less restrictive alternatives available, or, if a less restrictive involuntary form of treatment, is sought, specify the treatment and the basis for supporting it. AS 47.30.730(a)(2) Wetherhorn, 156 P.3d at 378.
The petition must allege with respect to a
• gravely disabled respondent that there
is reason to believe that the respondent’s mental condition could be improved by the course of treatment sought; AS 47.30.730(a)(3) Wetherhorn, 156 P.3d at 378.
The petition must specify a
• treatment facility or less restrictive alternative that
is appropriate to the respondent’s condition has agreed to accept the respondent. AS 47.30.730(a)(4).
The petition must indicate respondent has been
• advised of the need but not
accepted, voluntary treatment. AS 47.30.730(a)(5). and The petition must request that the court
• commit the respondent to the treatment
facility or less restrictive alternative for a period not to exceed 30 days. AS 47.30.730(a)(5)
The petition must list the prospective
• witnesses who will testify in support of
commitment or involuntary treatment, but the petition need not summarize all the evidence or be suffi cient in itself to entitle granting the petition as a matter of law. Wetherhorn, 156 P.3d at.380.
NOTICE
See Appendix 2 NOTICE RIGHTS
See Appendix 3 RIGHTS TIMEFRAMES
Computing Periods of Time see AS 47.30.805 •
Hearing within
• 72 hrs of either admission or time the patient fi les notice no longer a voluntary patient. AS 47.30.805(e)
Court can continue hearing past
• 72 hrs only if respondent and attorney waive.
Then hearing must be held within 7 days after admission. AS 47.30.725. 30 day commitment
• period expires at end of the 30th day after the 72 hrs following initial acceptance unless the respondent has failed to appear or been voluntarily absent. AS 47.30.805.
If respondent is refusing medication a Petition for Court Approval is usually fi led •
at same time (NOTE: Such non-emergency motions allow for continuance. Medication petition may be held within 72 hours after fi ling, rather than 72 hours after admission. AS 47.30.829(e). If the visitor is unable to complete the report timely, the hearing must be continued. Wetherhorn, 156 P.3d at 381-82.) A 30-day commitment period expires at the end of the 30th day after the 72 hours •
following initial acceptance. AS 47.30.805. EVIDENCE
Rules of evidence and procedure are applied to provide for the informal but •
effi cient presentation of evidence. AS 47.30.735(b)(4). Expert Witness – Evidence Rule 702 and 703.
BURDEN of PROOF
Clear and Convincing
• AS 47.30.735 ( c) and .740 (c). (Highly probable but not beyond a reasonable doubt or a certainty or conclusive.)
Mental illness
o as defi ned in AS 47.30.915(12); As a result
o of mental illness patient is likely to cause serious harm to self or others and/or is gravely disabled. (See Appendix 1)
No viable less restrictive alternative available
• AS 47.30.735 (d) and
AS 47.30.915 (9), Wetherhorn, 156 P.3d at.378.
If petition alleges that respondent is gravely disabled then it must •
allege that the respondent’s mental condition could be improved by the course of treatment sought. AS 47.30.730(a)(3); Wetherhorn, 156 P.3d at 378.
FINDINGS
Form MC-310
Having considered the allegations of the petition, the evidence presented and the arguments of counsel, the court fi nds:
Clear and convincing evidence
• respondent is mentally ill and as a result, is
likely to cause harm to self or others and/or is gravely disabled
If petition alleges respondent is gravely disabled then fi nding by clear and convincing evidence that the respondent’s mental condition could be improved by the course of treatment sought. AS 47.30.730(a)(3). Wetherhorn, 156 P.3d at 378.
If gravely disabled, the “distress” that justifi es commitment refers to the level of incapacity that prevents the person from being able to live safely outside of a controlled environment. Wetherhorn, 156 P.3d at.378.
Respondent has been advised of and refused voluntary treatment. •
Respondent is resident of the State of _________. •
Respondent has been given proper written Notice of Rights and those rights have •
been explained orally.
Respondent is committed for up to 30 days. •
Respondent was given verbal notice that if commitment or other involuntary •
treatment beyond 30 days is sought, respondent will have the right to a full hearing or jury trial.
If commitment is extended, respondent has a right to an independent second •
opinion and is the respondent is indigent, the court will appoint an independent physician or mental health professional to examine respondent and to testify. AS 47.30.745(e).
_______is an appropriate treatment facility and has agreed to accept •
respondent.
Clear and Convincing evidence that the evaluation staff has considered and not •
found that there are any less restrictive alternatives available. Wetherhorn, 156 P.3d at.378.
There is a preference for facility closer to home unless court orders otherwise. •
(See Appendix 5 Placement at Closest Facility)
If respondent is accepted but refuses a less restrictive alternative then court may •
order the less restrictive alternative. AS 47.30.735(d). The facts which support the above conclusion are:
See also:
Appendix 1 Mentally Ill
Appendix 4 No less restrictive alternative available ORDER
It is ordered that respondent ______is committed to ______for a period of time •
not to exceed 30 days.
POST FINDING NOTICE REQUIREMENT
The court is required to specifi cally notify the respondent
• in writing that if the
treatment facility seeks a commitment past 30 days the respondent has the right to a full hearing or jury trial. AS 47.30.735 (e).
The court must inform respondent of the right to appeal an involuntary commitment •
order. AS 47.30.765.
Respondent has 10 days to fi le objections (frequently reduced to 3 days) to the •
Masters recommendations. Civil Rule 53(d)(2); Probate Rule 2(f).
The court is required to specifi cally notify the respondent that if the treatment •
facility seeks a commitment past 30 days the respondent has the right to a full hearing or jury trial. AS 47.30.745(c).
Court May Advise:
That hospital has the
• authority to discharge before the end of the commitment
period.
If commitment is extended, respondent has a right to an independent o
second opinion and if the respondent is indigent, the court would appoint someone. AS 47.30.745(e).
APPEAL
Respondent has right to appeal an involuntary commitment order. AS •
47.30.765.
Respondent may fi le objections to Master’s Recommendations (usually within 3 •
days).
Habeas Corpus Not Limited.
• Nothing in AS 47.30.660 - 47.30.915 may be