This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
In the Matter of: Susan T. Carey
Filed August 5, 2003
Hennepin County District Court
File No. P40260587
Gregory R. Solum, 7625 Metro Boulevard, Suite 140, Edina, MN 55439 (for appellant)
Amy Klobuchar, Hennepin County Attorney, John Kirwin, Assistant County Attorney, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)
Considered and decided by Anderson, Presiding Judge, Shumaker, Judge, and Halbrooks, Judge.
G. BARRY ANDERSON, Judge
Appellant challenges the decision by the district court committing her as mentally ill and authorizing involuntary administration of neuroleptic medication. First, we find sufficient record evidence to affirm the district court’s conclusion that appellant poses a threat of physical harm to herself. Next, we affirm the district court’s finding that judicial commitment of appellant is the least restrictive alternative available. Finally, we find sufficient evidence in the record to affirm the district court’s finding that appellant lacks the capacity to give consent to take neuroleptic medications, that such medications are necessary, and that there are no alternative treatments available. We affirm.
Appellant Susan T. Carey is a 58-year old woman who has been hospitalized for psychiatric issues approximately 10 times since the age of 19 and currently receives social-security disability benefits based on her history of psychiatric illness. After the death of her husband in 1999, appellant’s mental health deteriorated and she was hospitalized at Anoka-Metro Regional Treatment Center (Anoka) in June 1999. Upon her release in June 2001, a conservator was appointed who moved appellant to an apartment at Teacher’s Park Residence in Minneapolis.
During the 16 months that appellant lived at Teacher’s Park Residence, an outreach nurse, Mary Sheggeby, worked to help ensure that appellant took the medications prescribed for her mental illness. Appellant resisted taking her medications and took them only “sporadically.”
At appellant’s commitment hearing, appellant’s brother, Richard Talbott, when asked whether appellant, with the help of her conservator, could provide herself with food, clothing, shelter and medical care at her apartment, answered, “a very qualified yes.” Talbott also testified that he “think[s]” appellant can take care of herself.
Appellant’s conservator, Sharon Benson, testified that appellant could only provide food, clothing, and shelter for herself with the help of her brother, facility staff, and home-care workers. Although Benson testified that appellant cooked and did some of her own shopping, appellant also resisted attempts by Benson and others to arrange services to help her, including retaining a homemaker, assisting her with medications, and retaining a case manager to assist with appellant’s finances.
Before her current hospitalization at Abbott Northwestern Hospital (Abbott), appellant had a number of delusional episodes, including repeated claims that she had serious medical problems. In 1985, appellant had a double mastectomy. In 2002, Benson took her to multiple medical appointments after appellant believed that the cancer had reappeared. Even after biopsies were performed and oncology doctors stated that she was cancer free, appellant insisted that she had cancer and that the doctors just did not test the right spots. Appellant also repeatedly claimed that she needed surgery on her foot and that she had heart problems. Cardiac testing revealed no significant heart problems and an orthopedic surgeon recommended only a shoe insert, to make appellant more comfortable, rather than surgery.
In all, within the six months prior to her admission at Abbott, appellant went to approximately 58 scheduled appointments at Hennepin County Medical Center (HCMC) and 12 times to the emergency room. Because of her frequent visits, the HCMC staff discussed whether appellant was overusing the resources at the hospital to the point that a ban on her obtaining medical care at the facility might be appropriate.
On November 3, 2002, Talbott brought appellant to the emergency room at Abbott after appellant complained of chest pains and that she could not breathe. Appellant also claimed that a man in her apartment building was asking her for sex and that she was afraid that he would assault her. She explained that she had been experiencing anxiety episodes four to five times a day that resulted in chest pains, tremors, a feeling that she needed to escape her situation, dyspnea, lightheadedness, and weakness. Appellant also admitted that two days prior to her admission, she thought of killing herself by suffocation and that she had previously attempted suicide five times. Abbott’s psychiatric admission evaluation states that appellant could barely provide a “coherent account of the events leading to her hospitalization,” due to her anxiety.
While at Abbott, appellant claimed that she suffered from a litany of medical problems despite the lack of symptoms related to these problems. Despite her doctors’ reassurances that no such medical issues existed and testing showing that appellant does not suffer from any of these maladies, she continued to believe she was physically ill. Appellant also claimed that she had been pregnant and raped many times and has “delivered babies in the toilet,” that she could not walk due to a broken hip when she obviously could, that she needed “neurosurgery and spinal fusion surgery,” and that she was offered “a way to commit suicide in the waiting room of the court house” after one of her court appearances. She also repeatedly stated that she wished she were dead, that “I won’t be alive tomorrow,” and that solid food could kill her and that she tried to kill herself by eating an apple. Appellant also left her hospital room on a number of occasions exposing parts of her naked body to others in the hospital’s common areas.
Appellant refused to eat during much of the time while hospitalized, claiming that she couldn’t swallow and that she needed to see a specialist. Her refusals caused her to lose between 20 and 34 pounds. Her doctors had previously advised appellant to lose weight, however, and she is still not underweight or malnourished. Appellant’s doctors stressed that this is not an appropriate way to lose weight; Dr. James Knudson testified that if she continued to refuse food that it could eventually lead to significant health problems or even death.
At appellant’s commitment hearing on December 11, 2002, Dr. Knudson; appellant’s brother, Richard Talbott; the conservator, Sharon Benson; and the home health-care nurse, Mary Sheggeby, all supported the petition to commit appellant. The only individual not supporting appellant’s commitment was the Hennepin County pre-petition screener, Jeffrey Meyer.
First, both Drs. Knudson and Nelson testified to a reasonable psychiatric certainty, that appellant’s diagnosis is schizoaffective disorder. This diagnosis substantively affects appellant by altering her perceptions of reality and distorting her thought processes so that she misinterprets or imagines symptoms that do not exist. Although Knudson testified that appellant’s memory and orientation appeared fairly normal, her capacity to reason or recognize reality has been compromised. Knudson supported the petition for commitment because appellant presents a danger to herself from her significant weight loss and because she may lose access to health care due to her inappropriate use of medical services. Both doctors also observed that appellant’s overuse of medical resources could potentially harm others by diverting help from those who need it.
Knudson and Nelson recommended authorizing the use of neuroleptic medications. Knudson testified that appellant’s refusal to take her medications appeared to be due to her delusions. In his opinion, there is no adequate alternative to administering neuroleptics and a reasonable person similar to appellant would agree to take such medications.
The pre-petition screener Jeffrey Meyer testified that although he believes that appellant is mentally ill, she is not a danger to herself or others. Meyer stated that there was sufficient evidence that before coming to Abbott appellant was able to provide for her basic needs, including food, clothing, shelter, and medical care, and that she was not a threat to herself or others.
There was also considerable testimony as to the issue of whether commitment was the least restrictive alternative. For example, Knudson testified that no nursing homes were willing to accept appellant and stated, “I believe there’s no less restrictive alternative.” Benson testified, “[f]inancially [appellant] would be eligible (for home services), but I don’t feel she is appropriate at all for services, as we’ve tried in the past to set up services for her at home, and they failed.” Benson went on,
All of these services (home services), multiple times, have been cancelled. She claimed that she didn’t need the service. I got many, many calls from the * * * nurse that she just went and saw Susan, and Susan refused to let her set up the meds or check them for med compliance.
Finally, Nelson acknowledged that Anoka was not an ideal placement for her, but he also concluded, “Yet, I don’t seen any lesser restrictive option at this point.”
On November 20, 2002, Abbott Northwestern Hospital (Abbott) filed a petition to commit appellant as mentally ill and a Jarvis petition for authority to administer neuroleptic medications. The district court found that appellant is mentally ill as defined by Minn. Stat. § 253B.02, subd. 13(a) (2002), and committed appellant to Anoka for treatment. As to the neuroleptic medications, the district court found that appellant is not competent to give or withhold consent for the use of medications, that neuroleptic medications are currently prescribed and widely accepted to treat appellant’s illness, that the use of such medications is necessary and reasonable, and that the benefits from medicating appellant outweigh the risks from that treatment. This appeal followed.
On review from a civil commitment, we determine whether the district court complied with the Minnesota Commitment and Treatment Act and whether the evidence in the record supports the findings of fact. In re Knops, 536 N.W.2d 616, 620 (Minn. 1995). We review the record in the light most favorable to the district court’s decision. Id. We will not set aside findings of fact justifying commitment “unless clearly erroneous,” and we give due regard to the opportunity of the district court to judge the witnesses’ credibility. Minn. R. Civ. P. 52.01. Whether the evidence is sufficient to meet the standard for civil commitment is a legal question, which we review de novo. Knops, 536 N.W.2d at 620. Finally, where the findings of fact rest almost exclusively on expert testimony, the district court’s credibility determinations will be of “particular significance.” Id.
Civil commitments are governed by the Minnesota Commitment and Treatment Act, codified at Minn. Stat. §§ 253B.01-.23 (2002). To commit a person, the district court must find by clear and convincing evidence that a person is “mentally ill” within the meaning of the commitment statute and find that no “reasonable alternative dispositions” exist to treat the individual. Minn. Stat. § 253B.09, subd. 1(a) (2002); In re McGaughey, 536 N.W.2d 621, 623 (Minn. 1995).
The statute defines a mentally ill person as
any person who has an organic disorder of the brain or a substantial psychiatric disorder of thought, mood, perception, orientation, or memory which grossly impairs judgment, behavior, capacity to recognize reality, or to reason or understand, which 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;
(2)an inability for reasons other than indigence to obtain necessary food, clothing, shelter, or medical care as a result of the impairment and it is more probable than not that the person will suffer substantial harm, significant psychiatric deterioration or debilitation, or serious illness, unless appropriate treatment and services are provided;
(3)a recent attempt or threat to physically harm self or others; or
(4)recent and volitional conduct involving significant damage to substantial property.
Minn. Stat. § 253B.02, subd. 13(a) (2002) (emphasis added). The determination of a “substantial likelihood of physical harm to self or others” is crucial, because there is no constitutional basis for confining mentally ill persons involuntarily if they are not dangerous to anyone and can live safely on their own. O’Connor v. Donaldson, 422 U.S. 563, 575, 95 S. Ct. 2486, 2493 (1975).
The district court relied on appellant’s inability to obtain necessities, including her refusal to eat solid foods and her overuse of health-care services to the point that HCMC threatened to ban her from obtaining care, as justification for the commitment. See Minn. Stat. § 253B.02, subd. 13(a)(1) (providing that a failure to obtain necessities can demonstrate that an individual poses a substantial likelihood of physical harm to self or others to justify a finding of mental illness). The court did not find that appellant posed a threat of physical harm to others or that she had recently attempted or threatened to harm others. See Minn. Stat. § 253B.02, subd. 13(a)(3) (providing that a recent attempt or threat to physically harm self or others can demonstrate that an individual poses a substantial likelihood of physical harm to self or others justifying a finding of mental illness). Although the court did not cite the statutory basis for its order, it appears that the court also found that appellant was unable to obtain necessary food, clothing, shelter, or medical care under Minn. Stat. § 253B.02, subd. 13(a)(1), because of her delusional medical problems and weight loss.
Appellant argues that there is insufficient evidence to establish that she posed a substantial likelihood of harm to herself or others. She contends that overuse of medical resources is not harming herself because there are no current restrictions on her use of medical facilities and her visits have ensured that her various ailments are appropriately examined by medical professionals. Further, appellant maintains that her weight loss began only after she was hospitalized at Abbott, that there has been no showing that such weight loss has endangered her health or that she is malnourished, and despite refusing to eat solid foods, she did consume some foods (applesauce and a nutritional drink).
A review of the record demonstrates, however, that the evidence supports the district court’s conclusions that appellant posed a substantial likelihood of harm to herself. First, the court heard testimony that appellant consistently refused to take her prescribed medications. Second, there was testimony regarding appellant’s prior suicide attempts and statements that she made to Nelson indicating that she wished she were dead. For example, appellant stated, “I’m surprised I’m still alive,” and, referring to the commitment hearing date, she said “I’ll be dead by then.” Although it is possible that these statements were delusions, Nelson’s opinion was that appellant doesn’t want to get better; she wants to die and that “there is some danger of her hurting herself.”
Knudson testified that appellant’s refusal to eat also has been detrimental to her health. He observed that although appellant is not presently malnourished, “it would be unethical to wait until she gets to that point where they have to do these invasive, intrusive procedures to keep her alive, to keep her nutrition up.” We recognize that speculation as to whether a person “may, in the future * * * attempt or threaten to harm self or others is not sufficient to justify commitment as a mentally ill person.” McGaughey, 536 N.W.2d at 623. But the Minnesota commitment act only mandates “that a substantial likelihood of physical harm exists, as demonstrated by * * * a recent attempt or threat to harm self or others.” Id. Thus, because we conclude that appellant’s refusal to eat, her suicidal tendencies, and her failure to take her medication support the district court’s finding that a “substantial likelihood of physical harm exists,” we affirm on this issue.
Appellant next challenges her commitment arguing that Anoka is not the least restrictive alternative. The court found that “none of the many nursing homes contacted is willing to accept [appellant] at this time, when she is refusing to take prescribed medications.”
In imposing an involuntary commitment, the district court must determine that judicial commitment is the only suitable disposition. Minn. Stat. § 253B.09, subd. 1; In re Brown, 640 N.W.2d 919, 922 (Minn. 2002). Reasonable alternative dispositions include dismissal of the petition, voluntary outpatient care, voluntary admission to a treatment facility, appointment of a guardian or conservator, and release before commitment. Minn. Stat. § 253B.09, subd. 1. If commitment is found to be the only suitable disposition, the district court must commit the person to the least restrictive treatment program that will meet the patient’s treatment needs. Id. We can reverse a district court’s findings as to the least restrictive treatment program to meet the patient’s needs if the findings are clearly erroneous. In re Kellor, 520 N.W.2d 9, 12 (Minn. App. 1994), review denied (Minn. Sept. 28, 1994).
Appellant argues that the district court erred in concluding that Anoka was the least restrictive alternative because it did not consider the possibility that a conservator or nursing home with Jarvis authorization could meet her needs also. She claims that because the main issue mentioned by many witnesses was appellant’s medication intake, or lack thereof, a nursing-home placement could be an appropriate alternative to commitment.
But the record sufficiently supports the district court’s finding that a nursing home would not be an appropriate setting for appellant and that judicial commitment is the least restrictive alternative available. First, Knudson testified that no nursing homes were willing to accept appellant: “I believe there’s no less restrictive alternative.” Second, conservator Benson testified, “[f]inancially [appellant] would be eligible (for home services), but I don’t feel she is appropriate at all for services, as we have tried in the past to set up services for her at home, and they failed.” Furthermore, based on working for ten years as a social worker, Benson testified, “I don’t think she would be appropriate [to place in a nursing home]. I think she needs more of a mental health specialty unit.” Finally, Nelson, while acknowledging that Anoka was not an ideal placement for her, concluded, “I don’t seen any lesser restrictive option at this point.”
Appellant’s lack of insight regarding her mental illness and refusal to cooperate with treatment efforts, such as taking prescribed medication to control her mental illness, also provide support for the district court’s finding that commitment is the only suitable disposition. See In re Melas, 371 N.W.2d 653, 655 (Minn. App. 1985) (patient’s lack of insight into mental illness, inability to agree to voluntary treatment, and refusal to cooperate with treatment efforts justify trial court’s rejection of alternatives).
Because we find overwhelming evidence in the record that judicial commitment of appellant is the least restrictive alternative, and that the district court examined, and dismissed, lesser alternatives as unacceptable, we affirm the court as to its finding that commitment was justified.
Appellant next argues that the district court erred when it determined that she lacks the capacity to make informed decisions regarding the administration of neuroleptic medications. Neuroleptic medications may not be administered involuntarily without court approval. Minn. Stat. § 253B.092, subd. 8(a) (2002); Jarvis v. Levine, 418 N.W.2d 139, 148 n.7 (Minn. 1988). Minnesota law presumes a patient is capable to decide whether to take neuroleptic medication. Minn. Stat. § 253B.092, subd. 5(a) (2002). If the patient refuses to take neuroleptic medications, the court must first determine whether the patient has the capacity to make the decision. Id., subd. 8(a). To determine if the patient has the capacity, the court must consider the following factors:
(1) whether the person demonstrates an awareness of the nature of the person’s situation, including the reasons for hospitalization, and the possible consequences of refusing treatment with neuroleptic medications;
(2) whether the person demonstrates an understanding of treatment with neuroleptic medications and the risks, benefits, and alternatives; and
(3) whether the person communicates verbally or nonverbally a clear choice regarding treatment with neuroleptic medications that is a reasoned one not based on delusion, even though it may not be in the person’s best interests.
Minn. Stat. § 253B.092, subd. 5(b) (2002). Disagreeing with one’s physician regarding the use of neuroleptic medications is not evidence of an unreasonable decision. Id.
The record supports the district court’s finding that appellant lacks the capacity to give consent to take neuroleptic medications. Appellant has not shown that she has insight into her mental illness. Knudson testified that appellant “doesn’t believe that she has a mental illness.” Nelson, when asked whether he believes that appellant has the capacity to decide to take neuroleptic medications or not, responded, “she does not have the capacity to make reasoned decisions.” He also stated that appellant “vacillates” acknowledging her mental illness, sometimes admitting being “psychotic” and then in the next instant denying any illness and claiming that the entire world is mentally ill. Nelson, therefore, recommended that the court approve the use of neuroleptic medications.
The undisputed evidence establishes that appellant has consistently refused to take medication prescribed for her mental illness, oftentimes because of delusional reasons, and that consequently, she cannot appreciate the potential benefits of medication to her. Knudson observed that appellant does not understand the ramifications of refusing her prescribed medications.
The evidence also establishes that the benefits to appellant’s mental health outweigh any side effects from the neuroleptic medication. For instance, Knudson expressed his hopes that medication would improve appellant’s judgment so that she would begin eating again and taking medicine voluntarily and that appellant might gain some insight into her mental illness. The possible side effects include, in the short term, dystonic reactions and tremors, and in the long term, neuroleptic malignant syndrome and tardive dyskinesia. Knudson explained that neuroleptic malignant syndrome is very rare but can be life threatening, and that tardive dyskinesia, although more common, usually develops only after long-term exposure to neuroleptic medicines. According to Knudson, these side effects can be managed if monitored and controlled with side-effect medication. Finally, Knudson stated that there are no reasonable alternatives to neuroleptic medications, stating that “her clinical condition warrants full therapeutic doses of anti-psychotics” and to do nothing would only cause appellant’s condition to deteriorate.
 “Dyspnea” is a sensation of difficult or uncomfortable breathing or a feeling of not getting enough air.
 Appellant claimed, inter alia, that she has had leaking breast implants, a heart attack, a stroke, fluid on her lungs, a “rectal problem” and a “bowel impaction” that prevents her from eating solid food, a grand mal seizure, brain damage due to lack of oxygen, diabetes, and a jaw disorder related to the temporomandibular joint (TMJ).
 Appellant did consume Resource, a nutritional drink.
 Jarvis v. Levine, 418 N.W.2d 139, 148-49 (Minn. 1988) (holding that: (1) involuntary administration of neuroleptics in nonemergency situations constituted “intrusive treatment” requiring medical director of state hospital to seek prior judicial approval, and (2) forcible administration of neuroleptics without prior judicial approval violated right of privacy under the Minnesota Constitution).
 Appellant’s other argument, that Minn. Stat. § 253B.09, subd. 1(c), mandates that appellant be committed to a community based program rather than a Regional Treatment Center is misplaced. This section only applies when a court finds an individual mentally ill under Minn. Stat. § 253B.02, subd. 13(a)(2) or (4). Because the district court relied on Minn. Stat. § 253B.02, subd. 13(a)(1) or (3), this argument is not properly before this court.
 For example, appellant says that she will not take her medications because she cannot swallow or because “the nurse raped me.”