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Compelled Head-Shaving of Mental Patient With Severe Head Lice Infestation Violated Constitution
From In the Matter of the Necessity for the Hospitalization of Lila B., decided Friday by the Alaska Supreme Court (in an opinion by Chief Justice Maassen):
A woman with a severe head-lice infestation was detained at a psychiatric hospital while she awaited evaluation for a mental health commitment. The superior court issued an order authorizing hospital staff to shave the woman's head without her consent. On appeal, the woman argues that involuntary head-shaving is a significant infringement upon a patient's fundamental rights and should require a heightened showing from the State.
We hold that before the State may shave the head of a nonconsenting patient in its care, it must demonstrate by clear and convincing evidence that head-shaving is the least restrictive means of advancing a compelling government interest. Because the State failed to meet that heightened standard in this case, we vacate the order authorizing the involuntary head-shaving….
A police officer detained Lila B. on an emergency basis for a mental health evaluation and transported her to a correctional center. Several days later the Department of Corrections petitioned for an order authorizing Lila's hospitalization for evaluation pursuant to AS 47.30.710. A superior court master issued the order, and after another three days Lila was transferred to the Alaska Psychiatric Institute (API) for evaluation.
API staff saw that Lila was suffering from a severe infestation of head lice, and they decided she should stay in the hospital admissions area until the infestation could be treated. Staff members encouraged her to let them apply a permethrin shampoo treatment to her hair, which was heavily matted. She responded that allowing them to touch or treat her hair would violate her religious beliefs, though she did not specify a belief system. After failing to secure her cooperation, API staff decided they would have to shave her head before she could be admitted to a hospital unit. [After an emergency court hearing,] hospital staff shaved Lila's head….
[At the hearing,] Lila testified next, explaining her opposition to having her head shaved. She explained that her religious belief, "which is the Bible," forbade her from touching, cutting, and shaving her hair. She testified that her eczema caused a weeping infection on her scalp, "[s]o if they cut off my hair, I'm going to have to stare at myself in the mirror and remember this day … [a]nd I'm going to have to stare at my infection on my head, and it's going to be torture." …
The parties agree that shaving Lila's head against her will substantially burdened her fundamental rights and that the State was consequently required to demonstrate that the head-shaving was the least restrictive means of furthering a compelling state interest. Lila further asserts that the State was required to prove by clear and convincing evidence that other less restrictive alternatives — such as a permethrin shampoo treatment, isolation, or wearing a shower cap — were infeasible or inadequate….
We have previously held that "the right 'to be let alone' [—] including the right to determine one's own hairstyle in accordance with individual preferences and without the interference of governmental officials or agents [—] is [a] fundamental right under the constitution of Alaska." Hairstyle is an important component of identity and self-expression. An individual may wear hair of a certain style or length as an expression of gender identity, religious practice, or culture. During an involuntary commitment, which is a "massive curtailment of liberty," hairstyle may be one of the few means of self-expression the patient has left.
We have also recognized "that 'the right to make decisions about medical treatments for oneself … is a fundamental liberty and privacy right' under the Alaska Constitution." This right must extend equally to persons experiencing mental health crises so that they "are not treated 'as persons of lesser status or dignity because of their illness.'" When the State seeks to involuntarily commit a patient, the reviewing court "must determine that clear and convincing evidence shows [that] no feasible less restrictive alternative to involuntary commitment exists." Because shaving a patient's head without consent intrudes upon fundamental liberty and privacy rights, we will apply this same standard in the case of an involuntary head-shaving.
Involuntary head-shaving implicates both a patient's fundamental right to control her appearance and her fundamental right to make decisions regarding medical treatment. For patients with religious objections to hair-cutting and shaving, it may also implicate free exercise rights. {The parties agree that the head-shaving substantially burdened Lila's fundamental liberty and privacy rights. We do not decide whether Lila's testimony regarding her religious belief established a violation of her free exercise rights.}
Lila testified that viewing her shaved scalp in the mirror would be "torture." For Lila, who was detained for evaluation but did not ultimately meet the criteria for involuntary commitment, the highly visible effects of the head-shaving lasted long after her release from state custody. Before imposing such a substantial burden on a patient's fundamental rights, it is imperative that the State meet a heightened evidentiary standard. For this narrow context, we therefore adopt the clear and convincing evidence standard….
Having clarified the burden on the State, we next determine whether the State demonstrated a compelling interest in treating Lila's lice infestation. We conclude that it did….
[T]he State indubitably has, in most circumstances, a compelling interest in "protecting the life, health, and safety of … vulnerable groups." The superior court found that "[t]ransmission of lice could adversely affect the health of patients and staff" because lice "bite their hosts and [could] cause cellulitis and other infections," and that "[o]ther patients [at API] who are unable to attend to their own hygiene are particularly at risk for untreated infections." …
We conclude that the evidence before the superior court did not clearly and convincingly establish that shaving Lila's head was the least restrictive way to accommodate the State's legitimate concerns. The court relied on Czech's testimony that a permethrin treatment "may miss" any active lice that were embedded in Lila's hair mats, but the court also acknowledged that "[i]f shampoo alone would kill the active lice, the court would not conclude that API's proposed treatment was least restrictive." Czech testified that a permethrin treatment "should kill the active lice immediately" and "should be good for approximately 10 days" before another infestation, from a new hatch of nits, could take hold. Lila's authorized detention at this stage was only 72 hours. Even assuming that nits would begin to hatch during that 72-hour period, Czech did not testify that hospital staff could not reapply a permethrin treatment during that time. And even if permethrin alone would not have killed all active lice, the State's evidence did not establish that using a permethrin treatment in conjunction with a head covering or some measure of physical isolation would have been ineffective to further the government's compelling interest in preventing the spread of lice.
Relying on Czech's testimony, the superior court further found that "API is unable to effectively isolate [Lila]." Czech's testimony established that API would be unable to accommodate "true isolation" as was necessary during the COVID-19 pandemic. However, his testimony failed to demonstrate, by clear and convincing evidence, that API could not segregate Lila from other patients in such a way as to prevent the transmission of lice. A less strict form of isolation could have furthered the State's compelling interest, particularly if API staff first applied a permethrin treatment to reduce the severity of the lice infestation. In short, we do not read Czech's testimony as providing clear and convincing evidence that no combination of permethrin, head-covering, and reasonable limitations on contact with others could have advanced the State's compelling interest in protecting patients and staff from transmission during the period of Lila's detention.
Because these alternatives were not sufficiently explored, we conclude that the State did not meet its substantial evidentiary burden to show by clear and convincing evidence that less restrictive alternatives were unavailable or infeasible. Authorizing the involuntary head-shaving was therefore error….
Kelly R. Taylor represents Lila B.
