IN THE SUPREME COURT
STATE OF NORTH DAKOTA
IN THE INTEREST OF R.G.M.
|Stacy Adams, L.S.W.,||)|
|Petitioner and Appellee,||) Supreme Court No. 20130167|
|) District Court No. 09-2013-MH-00112|
|Respondent and Appellant.||)|
Appeal from the Findings of Fact, Conclusions of Law, and Order Following Treatment or Continuing Treatment Hearing; the Order for Hospitalization and Treatment; and the Order regarding Involuntary Treatment with Medication entered on May 3, 2013.
Cass County District Court
East Central Judicial District
The Honorable Wade L. Webb, Presiding
|Gary E. Euren, NDID #4502|
|Assistant State's Attorney|
|Cass County Courthouse|
|211 Ninth Street South|
|P.O. Box 2806|
|Fargo, North Dakota 58108|
|Attorney for Petitioner-Appellee|
[¶1] TABLE OF CONTENTS
|Table of Authorities||¶ 2|
|Jurisdictional Statement||¶ 3|
|Standard of Review||¶ 5|
|Issues Presented||¶ 7|
|I. Whether the trial court erred in finding there was clear and convincing evidence to support an order for involuntary in-patient treatment under N.D.C.C. ch. 25-03.1.||¶ 8|
|II. Whether the trial court erred in ordering forced medication.||¶ 9|
|III. Whether the trial court erred in ordering forced medical treatment and procedures.||¶ 10|
|IV. Whether the trial court erred in not ordering less restrictive treatment for Respondent.||¶ 11|
|Statement of the Case||¶ 12|
|Statement of Facts||¶ 15|
|I. The trial court did not err in finding there was clear and convincing evidence to support an order for involuntary in-patient treatment under N.D.C.C. ch. 25-03.1.||¶ 22|
|II. The trial court did not err in ordering forced medication.||¶ 33|
|III. The trial court did not err in ordering forced medical treatment and procedures.||¶ 39|
|IV. The trial court did not err in not ordering less restrictive treatment for Respondent.||¶ 42|
|Certificate of Service||¶ 48|
[¶2] TABLE OF AUTHORITIES
North Dakota Cases:
Interest of B.L.S., 2006 ND 218, 723 N.W.2d 395 ¶ 6, 40
Interest of D.P., 2001 ND 203, 636 N.W.2d 921 ¶ 44
Interest of H.G., 2001 ND 142, 632 N.W.2d 458 ¶ 24
Interest of M.M., 2005 ND 219, 707 N.W.2d 78 ¶ 41
North Dakota Constitution:
N.D. Const. Art. VI, § 6 ¶ 4
N.D. Const. Art. VI, § 8 ¶ 4
North Dakota Statutes:
N.D.C.C. § 25-03.1 ¶ 23, 40
N.D.C.C. § 25-03.1-02 ¶ 23, 26, 40
N.D.C.C. § 25-03.1-03 ¶ 4
N.D.C.C. § 25-03.1-18.1 ¶ 34, 35, 40
N.D.C.C. § 25-03.1-21 ¶ 43
N.D.C.C. § 25-03.1-29 ¶ 4
N.D.C.C. § 27-05-06 ¶ 4
N.D.C.C. § 29-28-06 ¶ 4
[¶3] JURISDICTIONAL STATEMENT
[¶4] The District Court had jurisdiction over this case pursuant to N.D. Const. art. VI, § 8 and N.D.C.C. § 27-05-06 and § 25-03.1-03. This Court has jurisdiction over this appeal under N.D. Const. art. VI, § 6 and N.D.C.C. § 29-28-06 and § 25-03.1-29. This appeal is timely under N.D.R.App.P. 2.1(a).
[¶5] STANDARD OF REVIEW
[¶6] This Court's review of involuntary commitment cases is "limited to an examination of the procedures, findings, and conclusions of the trial court." Interest of B.L.S., 2006 ND 218, ¶ 10, 723 N.W.2d 395. The findings of the district court are reviewed under the more probing clearly erroneous standard of review. Id. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence the Court is left with a definite and firm conviction that the findings are not supported by clear and convincing evidence. Id.
[¶7] ISSUES PRESENTED
I. [¶8] Whether the trial court erred in finding there was clear and convincing evidence to support an order for involuntary in-patient treatment under N.D.C.C. ch. 25-03.1.
II. [¶9] Whether the trial court erred in ordering forced medication.
III. [¶10] Whether the trial court erred in ordering forced medical treatment and procedures.
IV. [¶11] Whether the trial court erred in not ordering less restrictive treatment for Respondent.
[¶12] STATEMENT OF THE CASE
[¶13]This is an appeal from an order of the District Court, Cass County, committing Respondent to in-patient treatment at Sanford Health South University for up to 90 days and ordering forced medication, as well as several forced medical procedures. (File 09-2013-MH-00112 Case Summary, Index #22, 23, and 25; Appellant's Appendix [hereinafter App.] at 20, 22, and 24). A Petition for Involuntary Commitment was filed on April 25, 2013. (Index #2; App. at 5). A preliminary hearing was held on April 30, 2013, with Judge Wade L. Webb presiding. (Index #14; Disc Recording of Sanford v. R.G.M., Hearings). After hearing, the court ordered Respondent to in-patient treatment at Sanford for a period not to exceed fourteen days, ending May 14, 2013. (App. at 12-14).
[¶14] On May 2, 2013, a Report of Examination and a Request to Treat with Medications was filed with the court. (Docket 16, 17; App. at 15, 16). A treatment hearing was held on May 3, 2013, with the Honorable Judge Wade L. Webb presiding. (Index #22; Disc Recording of Sanford v. R.G.M., Hearings). On May 3, 2013, the district court issued its "Findings of Fact, Conclusions of Law, and Order Following Treatment or Continuing Treatment Hearing", "Order for Hospitalization and Treatment", and "Order Regarding Involuntary Treatment with Medication". (Index #22, 23, and 25; App. at 20, 23, 24). On June 3, 2013, the Notice of Appeal (App. at 25) was filed.
[¶15] STATEMENT OF FACTS
[¶16] Petitioner stipulates to the facts presented by R.G.M., with the following additions:
[¶17] Dr. Nadeem Haider, Sanford Health, testified on April 30, 2013, R.G.M. was admitted and held because he was having difficulty with his outpatient dialysis and his nephrologist thought he would be a danger to himself without his dialysis. (Disc: 4/30/13 hearing at 3:17). Furthermore, R.G.M. was refusing blood products, was constantly argumentative, and his health had significantly deteriorated. (Disc: 4/30/13 hearing at 3:36). R.G.M. is correct when he states he attempted to leave the hospital and was returned by police, but R.G.M. makes no reference to his altercation with a nurse which contributed to the hold. Dr. Haider testified R.G.M. becomes irate very quickly, demonstrated by an incident in which he called his nurse a "stupid bitch" and swung at her because he blamed her for causing his infections. (Disc 4/30/13 hearing at 8:23).
[¶18] Dr. Haider testified, in addition to not understanding standard protocols for treatment, R.G.M. lacks insight into his condition as evidenced by his consistently trying to adjust his dialysis machine and his deep suspicion towards any treatment given to him. (Disc: 4/30/13 hearing at 6:34). These erroneous conclusions regarding treatment and the suspicion towards medical staff stem from a combination of R.G.M.'s partial knowledge from previous treatments and his distorted cognitive processes. (Disc: 4/30/13 hearing at 7:19).
[¶19] Although it is true the district court did not find a substantial likelihood of suicide, killing or inflicting serious bodily harm on others, or serious damage to property, the court did find a substantial likelihood of substantial deterioration in physical health and substantial deterioration in mental health, predictably resulting in dangerousness to that person, others or property after the May 3rd hearing. (Appellant's App. at 21).
[¶20] When testifying about the risks and benefits regarding the various medical procedures requested, Dr. Levitsky-Heikilla stated the risks involved with removing the peritoneal catheter are quite low and there is a higher risk involved if the catheter is not removed. (Disc: 5/3/13 hearing at 21:00 to 22:00). Furthermore, Dr. Levitsky-Heikilla testified the installation of the AV Fistula actually comes with the lowest risk of infection when compared to other methods of dialysis. (Disc: 5/3/13 hearing at 21:52).
[¶22] I. The trial court did not err in finding there was clear and convincing evidence to support an order for involuntary in-patient treatment under N.D.C.C. ch. 25-03.1.
[¶23] A person may be involuntarily committed for mental health purposes if the person is found to be a person requiring treatment. N.D.C.C. § 25-03.1. A person requiring treatment is defined as:
[A] person who is mentally ill or chemically dependent, and there is a reasonable expectation that if the person is not treated for the mental illness or chemical dependency there exists a serious risk of harm to that person, others, or property. "Serious risk of harm" means a substantial likelihood of:
A. suicide, as manifested by suicidal threats, attempts, or significant depression relevant to suicidal potential;
B. killing or inflicting serious bodily harm on another person or inflicting significant property damage, as manifested by acts or threats;
C. substantial deterioration in physical health, or substantial injury, disease, or death, based upon recent poor self-control or judgment in providing one's shelter, nutrition, or personal care; or
D. substantial deterioration in mental health which would predictably result in dangerousness to that person, others, or property, based upon evidence of objective facts to establish the loss of cognitive or volitional control over the person's thoughts or actions or based upon acts, threats, or patterns in the person's treatment history, current condition, and other relevant factors, including the effect of the person's mental condition on the person's ability to consent.
N.D.C.C. § 25-03.1-02(12).
[¶24] The determination that an individual is a person requiring treatment is a two-step process. First, the court must find that the individual is mentally ill, and second, the court must find that there is a reasonable expectation that if the person is not hospitalized there exists a serious risk of harm to himself, others, or property. (Citations omitted).
In the Interest of H.G., 2001 ND 142, ¶ 4, 632 N.W.2d 458. R.G.M. argues the evidence was not sufficient to meet the criteria for commitment. The State contends the record provides sufficient evidence to support the district court's decision to commit Mulvaney. The record indicates R.G.M. suffers from a psychotic disorder related to Lupus which, if untreated, will cause harm because he doesn't accept treatment. (Disc: 4/30/13 hearing at 5:57).
[¶25] A. The record supports finding R.G.M. is mentally ill
[¶26] A mentally ill person is "an individual with an organic, mental, or emotional disorder which substantially impairs the capacity to use self-control, judgment, and discretion in the conduct of personal affairs and social relations." N.D.C.C. § 25-03.1-02(11).
[¶27] Dr. Haider, a licensed and trained psychiatrist, diagnosed R.G.M. with a psychotic disorder related to Lupus. (Disc: 4/30/13 hearing at 5:57). Dr. Haider believes flare ups in the past have led to a stroke in the early 2000's. (Disc: 4/30/13 hearing at 6:20). Dr. Haider also testified R.G.M.'s medical history consists of being followed by nephrology for years, lupus, renal failure, and seeing psychiatrists periodically since 2007. (Disc: 4/30/13 hearing at 3:56). R.G.M. is also said to have believed worms were coming out of his nose, when in actuality he was hooked up with breath pumps. (Disc: 4/30/13 hearing at 4:41).
[¶28] In addition to wanting to start his career, R.G.M. indicates he should be making millions of dollars instead of being subjected to nurses who seem to enjoy the power they have over him while on dialysis. (Disc: 5/3/13 hearing at 29:55). R.G.M. also indicates he feels like he is being continually raped by his doctors and nurses when he is on dialysis. (Disc: 5/3/13 hearing at 37:20). Dr. Svetoslav Hristov, M.D., indicates R.G.M. is mentally ill, that R.G.M. believes blood transfusion is poison, and he believes there is a parasite in his nose. (Appellant's App. at 4, 8). Dr. Hristov also documents R.G.M.'s altercation with the nurse. (Appellant's App. at 4, 8).
[¶29] In sum, R.G.M. has had some cognitive changes from his lupus and is believed to have a related psychosis. (Disc: 4/30/13 hearing at 5:20). There is evidence sufficient to support the district court's finding that R.G.M. is mentally ill and the decision was not clearly erroneous.
[¶30] B. The record supports the finding that, if left untreated, there exists a substantial likelihood of a substantial deterioration of Mulvaney's physical and mental health.
[¶31] Dr. Haider's main concern is about R.G.M.'s physical deterioration. (Disc: 4/30/13 hearing at 9:23) Without antipsychotics, R.G.M. will continue to have false beliefs about treatments and his paranoia towards staff will persist, both of which will further contribute to sepsis infections. (Appellant's App. at 17). Such an outcome is likely to lead to an early death. (Appellant's App. at 17). As a result of his mental illness, R.G.M. will likely be terminated from renal programs, increasing the likelihood of an early death. (Appellant's App at 17). R.G.M. has failed all the less restrictive forms of treatment, but could be offered them again if psychotically and medically stabilized. (Appellant's App. at 17).
[¶32] R.G.M. was previously in Grand Forks in a treatment facility and they could no longer manage him when he was off his medications. (Disc: 5/3/13 hearing at 17:30) R.G.M. was transferred to Sanford and ended up in almost the same situation where no other facility would want to take him. (Disc: 5/3/13 hearing at 17:45) Sanford was looking into options of terminating treatment. (Disc: 5/3/13 hearing at 17:52). As a result of foregoing treatment, R.G.M. risks not having adequate medical treatment, will depend on emergency rooms for emergent treatment, and have a high risk of mortality. (Disc: 5/3/13 hearing at 17:57).
[¶33] II. The trial court did not err in ordering forced medication.
[¶34] Before ordering involuntary treatment with medication, a court must find, by clear and convincing evidence, that a patient meets the requirements of North Dakota Century Code § 25-03.1-18.1(1)(a). The treating psychiatrist and other licensed physician or psychiatrist not involved in the current diagnosis or treatment of the patient must certify the following requirements are met:
(1) That the proposed prescribed medication is clinically appropriate and necessary to effectively treat the patient and that the patient is a person requiring treatment;
(2) That the patient was offered that treatment and refused it or that the patient lacks the capacity to make or communicate a responsible decision about that treatment;
(3) That prescribed medication is the least restrictive form of intervention necessary to meet the treatment needs of the patient; and
(4) That the benefits of the treatment outweigh the known risks to patient
[¶35] When making its decision, the district court must consider all relevant evidence presented at the hearing, including:
(1) The danger the patient presents to self or others;
(2) The patient's current condition;
(3) The patient's treatment history;
(4) The result of previous medication trials;
(5) The efficacy of current or past treatment modalities concerning the patient;
(6) The patient's prognosis; and
(7) The effect of the patient's mental condition on the patient's capacity to consent.
N.D.C.C. § 25-03.1-18.1(2)(a).
[¶36] R.G.M. argues there was not clear and convincing evidence that he has a mental illness for which requested medications would be appropriate. However, there is sufficient evidence on the record to support the district court's decision and the decision was therefore not clearly erroneous. Supra.
[¶37] Dr. Haider and Dr. Levitsky-Heikilla certified the requested medications "intramuscular Invega, oral Risperdal, an antidepressant, blood transfusions, renal dialysis with compliance with their protocol . . . , removal of peritoneal catheter, allow placement of A-V fistula for dialysis, all antibiotics when needed, removal of permanent catheter, allow the use of phosphate binder [and] follow dietary recommendations." (App. at 15). Dr. Haider feels the medication, specifically antipsychotics Invega and Risperdal, has historically proven to help R.G.M. be somewhat more compliant with treatment and less prone to agitation and aggression. (Disc: 5/3/13 hearing at 8:10). R.G.M. was offered the prescribed treatment and has refused most of the treatments. (Disc: 5/3/13 hearing at 12:10).
[¶38] Dr. Haider feels the reason R.G.M. is not agreeing to medical treatments is because of his mental illness. (Disc: 5/3/13 hearing at 10:30). Dr. Haider testified these treatments are the least restrictive means in terms of maintaining a safe treatment course for R.G.M.. (Disc: 5/3/13 hearing at 12:36). Furthermore, the risks of not having a full regimented treatment protocol as recommended places R.G.M. at significant risk. (Disc: 5/3/13 hearing at 12:57). The district court's decision that R.G.M. met the requirements for involuntary treatment with prescribed medication is supported by sufficient evidence and was not clearly erroneous.
[¶39] III. The trial court did not err in ordering forced medical treatment and procedures.
[¶40] The provisions of N.D.C.C. ch. 25-03.1, especially N.D.C.C. § 25-03.1-18.1 and N.D.C.C. § 25-03.1-02, do not limit the types of medications requested for involuntary treatment with prescribed medication. In the Interest of B.L.S., 2006 218, ¶ 25, 723 N.W.2d 395. Since the Court made a determination that R.G.M. was mentally ill, it was entirely appropriate for the Court to order use of medications for physical and mental conditions.
[¶41] "Although a person has the right to refuse medical treatment the decision to refuse that treatment should be made when the person in not mentally ill." In the Interest of M.M., 2005 ND 219, ¶ 11, 707 N.W.2d 78. In M.M. the medical issue was kidney stones, not dialysis, but they are very similar. The Court in M.M. as here, made findings that the Respondent was unable to make rational decisions because of his mental illness and if not treated the condition would lead to life-threatening conditions. Id.
[¶42] IV. The trial court did not err in not ordering less restrictive treatment for Respondent.
[¶43] Section 25-03.1-21(1) of the Century Code provides:
Before making its decision in an involuntary treatment hearing, the court shall review a report assessing the availability and appropriateness for the respondent of treatment programs other than hospitalization which has been prepared and submitted by the state hospital or treatment facility. If the court finds that a treatment program other than hospitalization is adequate to meet the respondent's treatment needs and is sufficient to prevent harm or injuries which the individual may inflict upon the individual or others, the court shall order the respondent to receive whatever treatment other than hospitalization is appropriate for a period of ninety days.
[¶44] Regarding least restrictive conditions, the Court has stated:
We have stated numerous times that our statutory procedures require that a mental health patient has a right to the least restrictive conditions necessary to achieve the purpose of treatment. To comply with the requirement of N.D.C.C. § 25-03.1-21(a), the district court is required to make a two-part inquiry: (1) whether a treatment program other than hospitalization is adequate to meet the individual's treatment needs, and (2) whether an alternative treatment program is sufficient to prevent harm or injuries which an individual may inflict on himself and others. The district court must find, by clear and convincing evidence, that alternative treatment is not adequate or that hospitalization is the least restrictive alternative. The district court's findings are critical not merely for purposes of our review, but also to ensure the basis for the district court's decision is clearly articulated, thereby demonstrating that the careful and serious consideration so clearly warranted in the context of an involuntary commitment proceeding has indeed been given.
In Interest of D.P., 2001 ND 203, ¶ 12, 636 N.W.2d 921. (Citations omitted).
[¶45] The district court found that a treatment program other than hospitalization would not be adequate to meet R.G.M.'s needs or sufficient to prevent harm or injuries to R.G.M.. (Disc: 5/3/13 hearing at 43:25). The court also considered two Reports Assessing Availability and Appropriateness of Alternative Treatment in making its judgment. (Appellant's Appendix at 10 and 18). In considering these reports, the district court determined those options were not in R.G.M.'s best interests. There was sufficient evidence presented supporting the district court's decision the recommended treatment is the least restrictive means to adequately treat R.G.M.. The decision was not clearly erroneous.
[¶47] Therefore, the State respectfully requests this Court affirm the decision of the District Court in all respects.
|Benjamin Sand||Gary E. Euren, NDID #4052|
|Summer Law Clerk||Assistant State's Attorney|
|Limited Practice Rule||P.O. Box 2806|
|Fargo, North Dakota 58108|