This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
In re: Bengt Thulin.
Filed October 22, 2002
Affirmed; motion denied
Itasca County District Court
File No. P902574
Timothy L. Aldrich, 415 Southeast 13th Street, Suite 100, Grand Rapids, MN 55744 (for appellant Thulin)
John J. Muhar, Itasca County Attorney, W. James Mason, Assistant County Attorney, 123 Northeast Fourth Street, Grand Rapids, MN 55744 (for respondent Itasca County)
Considered and decided by Randall, Presiding Judge, Lansing, Judge, and Harten, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges his civil commitment as mentally ill, contending that the district court did not have clear and convincing evidence from which to conclude that he was mentally ill, that the Brainerd Regional Treatment Center was the least restrictive alternative for treatment, or that he lacked the capacity to decide whether to take neuroleptic medication. He also argues that treatment with the medication violates his religious beliefs. We affirm.
Bengt Thulin was charged with two counts of terroristic threats based on communications with his county financial worker and his rehabilitation counselor. The district court found him incompetent to stand trial pursuant to Minn. R. Crim. P. 20.01 and ordered a petition for commitment as mentally ill be filed.
At the commitment hearing, Thulin’s financial worker testified that over the last three to six months, he had become frightened of Thulin, primarily based on handwritten comments on the back of Thulin’s monthly report forms. Most recently, on a report dated October 3, 2001, Thulin stated:
If you live long enough I will sue you for your stealing from me and lying about me. You cannot hide from me or my friends. We will see to it that you pay for your crimes.
Similarly, the rehabilitation counselor testified that he had received an e-mail from Thulin that caused him concern. The e-mail stated that the counselor would be given 24 hours to do the “right thing” for Thulin and that “[f]ailure to comply will mean that you will eventually be arrested, tried and convicted for HIGH TREASON, to which the punishment is death.” Several adult education teachers testified as to their unease when Thulin discussed the CIA and his belief that the agency killed his father, and when he made comments after the September 11, 2001, terrorist attacks, in which he stated he knew that it would occur and could have stopped it; that he knew how to make atom bombs; and that he could bring the government to its knees.
Thulin denied that he was mentally ill. He explained that when a conflict was not resolved in his favor, he did not threaten to harm the person with whom he disagreed, but he threatened to sue that person. Thulin acknowledged having a standoff with the police and his children in Jackson, Michigan, but denied having a gun.
The court-appointed examiner, Dr. Jacqueline McPherson, a psychologist, and Dr. Randall Lakosky, a board-certified psychiatrist, attempted to examine Thulin, but he refused to meet with them. Thulin explained that based on his religious beliefs, he does not believe in psychology or psychiatry. Both were able to form opinions as to Thulin’s condition and diagnosed him as suffering from schizophrenia, paranoid type.
Thulin has a history of hostile, aggressive, and assaultive behaviors related to his delusional beliefs, including threats to his family and a hostage situation. While Thulin has not made suicidal threats, he has threatened aggressively against others, leading to individual threats to himself. Dr. McPherson recommended treatment at the Brained Regional Treatment Center on an inpatient basis. She rejected less restrictive alternatives because of Thulin’s denial of psychiatric problems and his failure to follow through with psychiatric care in the past, despite recommendations for such treatment from health care providers and family members. She believed that his continued delusional belief system, poor judgment, and lack of insight raised further concerns about his ability to obtain outpatient treatment.
Dr. Lakosky recommended Thulin receive treatment with Haldol, which can be given intramuscularly if necessary, or Risperdal, which can be taken orally. The side effects of Haldol, which may include tremors and restlessness, can be treated with medication and are considered more of a nuisance than a risk. At low doses, Risperdal does not produce such side effects. Dr. Lakosky explained that the potential benefits heavily favor treatment to allow Thulin to overcome his mental illness. Dr. Lakosky indicated that the medication should decrease Thulin’s delusions and preoccupations, and should give him energy for everyday living. Also, Dr. Lakosky indicated the medications should help lessen Thulin’s preoccupation with the CIA, and less his threatening behavior toward his children and others. Dr. Lakosky did not find Thulin competent to evaluate the risks and benefits of medication. Dr. Lakosky expected Thulin to respond fairly quickly to the medication and predicted that he would` then be able to receive outpatient treatment. While he was aware of Thulin’s religious and philosophical opposition to psychiatry and medication, he testified that no less restrictive alternative than psychiatric treatment was available.
The district court committed Thulin as mentally ill and authorized the involuntary administration of neuroleptic medication for a period of six months. This appeal followed.
D E C I S I O N
Findings of fact by the district court will not be reversed unless the findings are clearly erroneous. In re McGaughey, 536 N.W.2d 621, 623 (Minn. 1995). The commitment may be reversed if the findings are not sufficient to support the commitment. Id. at 624.
A mentally ill person is one with a substantial psychiatric disorder that
is manifested by instances of grossly disturbed behavior or faulty perceptions and poses a substantial likelihood of physical harm to self or others as demonstrated by:
(1) a failure to obtain necessary food, clothing, shelter, or medical care as a result of the impairment; or
(2) a recent attempt or threat to physically harm self or others.
Minn. Stat. § 253B.02, subd. 13(a) (2000).
Thulin contends that the district court did not have clear and convincing evidence that he was mentally ill or that his mental illness reached a level of grossly disturbed behavior. He cites the evidence showing that he was merely challenging what he perceived to be unfair and inappropriate treatment by threatening to sue. He also claims he never received a proper clinical evaluation.
As to Thulin’s mental illness, the court-appointed examiner and Thulin’s psychiatrist both testified that he suffered from paranoid schizophrenia. While neither conducted an interview with Thulin because he refused to participate, both made their evaluations based on a review of records, which is standard practice for professionals in their field. A proposed patient may not defeat a commitment by refusing to be examined. In re Rice, 410 N.W.2d 907, 910 (Minn. App. 1987), review denied (Minn. Oct. 28, 1987). As to grossly disturbed behavior, Thulin’s perceptions of unjust treatment and his responses to those perceived injustices demonstrate this factor was met.
Thulin next contends that the district court finding that he posed a substantial likelihood of harm to himself or others was not supported by clear and convincing evidence. The determination that a person is likely to cause harm is crucial, because there is “no constitutional basis for confining [mentally ill] persons involuntarily if they are dangerous to no one and can live safely in freedom.” O’Connor v. Donaldson, 422 U.S. 563, 575, 95 S. Ct. 2486, 2493 (1975). The likelihood of harm must be demonstrated by an overt failure to obtain necessities or a recent attempt or threat to harm self or others; mere speculation is insufficient. McGaughey, 536 N.W.2d at 623.
This is not to say, however, that the person must either come to harm or harm others before commitment as a mentally ill person is justified. The statute requires only that a substantial likelihood of physical harm exists, as demonstrated by an overt failure to obtain necessary food, clothing, shelter, or medical care or by a recent attempt or threat to harm self or others.
Id. at 623-24.
Thulin cites his own testimony that he has never threatened physical harm to anyone. He contends that his threats have merely been to sue those he disagrees with in open court and to expose the discrimination and harassment inflicted on him. The district court, however, credited the testimony by the witnesses as to the threatening nature of the statements Thulin conveyed. The findings are supported by the evidence and are not clearly erroneous.
Next, Thulin contends that the district court relied on threats that were indirect rather than direct and that such indirect threats do not meet the statutory standard. The district court assessed all the testimony regarding Thulin’s threatening comments, as well as expert testimony, and concluded that his recent threats showed that he posed a substantial likelihood of harm to himself or others. Witnesses described Thulin as angry and threatening, and the court reviewed the written threat and the threatening e-mail, in which Thulin refers to payment for crimes, punishment, and death. Witnesses repeatedly reported fear of him and the district court found that when examined in context, some of those who were objects of the threats were reasonably frightened. While this may not be the strongest case, we defer to the court’s assessment of the credibility of the witnesses. The district court’s determinations are supported by the evidence and are not clearly erroneous.
The district court also found Thulin failed to provide himself with the necessities of appropriate shelter and medical care as a result of his mental illness. See Minn. Stat. § 253B.02, subd. 13(a)(1) (providing that likelihood of harm may be shown by failure to provide necessities). Thulin disagrees with this finding, contending that he was living in his conversion van, where he was able to adequately care for himself by engaging in daily activities, feeding, clothing, and bathing himself, as well as caring for his dogs. The evidence showed that Thulin lived in his car or truck and it was undisputed that he did not take medication or obtain treatment. See In re Emond, 366 N.W.2d 689, 692 (Minn. App. 1985) (upholding commitment based on inability to provide necessities, as demonstrated by a recent failure to obtain medical care for open sores on face or to provide food or sanitary shelter). The district court determination is supported by the evidence and is not clearly erroneous.
Next, Thulin contends that placement at the Brainerd Regional Treatment Center was not the least restrictive alternative. On appeal, the district court decision as to placement will not be reversed unless clearly erroneous. In re King, 476 N.W.2d 190, 193 (Minn. App. 1991).
After a determination that there is no suitable alternative to judicial commitment, the district court must “commit the patient to the least restrictive treatment program or alternative programs which can meet the patient’s treatment needs.” Minn. Stat. § 253B.09, subd. 1 (2000). The court must identify less restrictive alternatives and its reasons for rejecting them. Minn. Stat. § 253B.09, subd. 2 (2000).
Thulin contends that the district court failed to consider the least restrictive alternative and did not make specific findings on the facility chosen and reasons for rejecting alternatives. To the contrary, the court made extensive findings. The court found Thulin had no insight, denies his mental illness, and rejected treatment. The court found that the Brainerd Regional Treatment Center was the least restrictive commitment alternative available that was consistent with appropriate treatment and public safety. No less restrictive alternative was reasonable because of Thulin’s deep lack of insight into the causes of his problem and his need for treatment. The court specifically rejected a number of alternatives to involuntary commitment, finding only the regional treatment center was capable of meeting Thulin’s needs. The district court made the necessary findings and its decision is supported by the record.
Finally, Thulin challenges the determination that he is not competent to refuse neuroleptic medication, contending he is competent because he understands the effects of the medication. A treatment facility must have court approval to administer neuroleptic medication to a committed person who refuses such treatment. Minn. Stat. § 253B.092, subd. 8(a) (2000); Jarvis v. Levine, 418 N.W.2d 139, 150 (Minn. 1988). A patient is presumed capable to decide whether to take neuroleptic medication, and the district court must determine whether the committed person has the capacity to decide whether to take neuroleptic medication. Minn. Stat. § 253B.092, subds. 5(a), 8(d), (e). In deciding this, the court must consider whether the person demonstrates an awareness of the nature of the situation, whether the person demonstrates an understanding of treatment and the risks and benefits, and whether the decision regarding treatment is a reasoned one not based on delusions. Minn. Stat. § 253B.092, subd. 5(b).
The court found that Thulin denied his mental illness and never accepted treatment or medication. As to understanding the treatment, the court found him incapable of weighing the advantages and disadvantages and that, in fact, risks were minimal and the medication was reasonably expected to benefit him. Based on the record and the findings, there is convincing evidence that Thulin lacks the capacity to decide whether to take medication.
Thulin also contends that such treatment is a violation of his religious beliefs, because he does not believe in psychology or psychiatry. He argues that involuntary administration of neuroleptic medication violates his constitutional right to exercise his religion freely under the Freedom of Conscience Clause of the Minnesota Constitution. Minn. Const. art. I, § 16.
Section 16 precludes infringement or interference with religious practices. State v. Hershberger, 462 N.W.2d 393, 397 (Minn. 1990). In addition, in deciding whether a reasonable person would decide to take medication, the district court may consider various factors, including the person’s religious values. Minn. Stat. § 253B.092, subd. 7(c).
The district court found that Thulin has not made specific claims as to his religious beliefs or described the nature of the religion or how long he has maintained the beliefs, except to the extent that he asserted he had them. We agree that Thulin has not made any affirmative showing that the medication order interfered with his religious practices.
Finally, Thulin filed a motion for discharge with this court on the ground that the treatment center had not filed the report as required under Minn. Stat. § 253B.12, subd. 1(b), (e) (2000). Respondent opposes the motion and filed a copy of the report Thulin claimed was missing. We deny Thulin’s motion. First, this court may not consider issues that have not been presented to and decided by the district court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). The record indicates this issue was never presented to the district court, but only to this court. Second, the late filing, if it was late, cured any mechanical problem with the record, and Thulin makes no showing of any prejudice.
Affirmed; motion denied.