may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
Matter of the Civil Commitment of:
Hennepin County District Court
File No. P657347701
Warren J. Maas, 7964 Brooklyn Boulevard, Suite 107, Brooklyn Park, MN 55445 (for appellant)
Amy Klobuchar, Hennepin County Attorney, John L. Kirwin, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)
Considered and decided by Peterson, Presiding Judge; Schumacher, Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from an order authorizing the administration of neuroleptic medication, appellant argues that there is not clear and convincing evidence that he lacks capacity to refuse neuroleptic medication. We affirm.
In 1975, appellant Andrew Chonis was committed as a person who is mentally ill and dangerous to the public, and since 1975, he has been in either a treatment facility or a correctional facility pursuant to various court orders. Appellant has a history of schizophrenia, and since 1990, has been involuntarily treated with neuroleptic medication pursuant to four court orders.
In December 2000, appellant’s neuroleptic medication was discontinued because he did not exhibit symptoms of schizophrenia. Monthly and quarterly psychiatric progress notes from January 2002 through March 20, 2003, consistently indicate the absence of any psychotic behaviors, but they note appellant’s antisocial and obsessive-compulsive behaviors and his refusal to regularly participate in treatment. Because his psychosis was in remission, appellant filed a petition for habeas corpus, and a hearing was scheduled to take place in April 2003.
On March 20, 2003, appellant was placed in protective isolation for five days due to his vocal hostility toward two members of his treatment team. Medical notes indicate that appellant’s schizophrenia remained in remission. On March 22, 2003, appellant was transferred to a more restrictive unit and came under the care of Dr. Karen Bruggemeyer, who diagnosed appellant with schizophrenia, paranoid type, various paraphilias, anti-social personality disorder, and obsessive-compulsive disorder. Three days later, Bruggemeyer initiated proceedings to authorize administration of neuruoleptic medications.
At the evidentiary hearing on the petition, Bruggemeyer testified that appellant demonstrated an increase in his level of irritability and hostility since discontinuation of antipsychotic medication and that he has become more suspicious of others’ intentions. On cross-examination, Bruggemeyer admitted that irritability and hostility can also be symptoms of anti-social personality disorder.
Bruggemeyer also testified that appellant did not understand the reasons for the recommended treatment nor the consequences of refusing to take neuroleptic medication; appellant does not believe he is mentally ill or that he needs treatment with neuroleptic medication; and based on the lack of significant side effects from his prior use of neuroleptic medication, she did not anticipate any adverse side effects from the medication she wanted to prescribe for him. Bruggemeyer opined that appellant does not have the capacity to understand the risks and benefits of neuroleptic medication or the capacity to make a reasoned choice about the medication.
Because the court-appointed examiner, Dr. Mark Willenbring, had not been able to interview appellant, the court continued the hearing to permit Willenbring to conduct an interview. When the hearing resumed, Willenbring testified that he diagnosed appellant with schizophrenia, residual type. Willenbring testified that appellant “is suspicious. . . and believes other people are lying about him and as a result he has become quite irritable and more difficult to manage on the unit.” Willenbring also testified that appellant’s thinking was “somewhat disorganized.” He stated that an example of appellant’s unusual thinking was his description of his former psychiatrist, Dr. Ian Heath, as his doctor even though Heath has not been assigned to appellant’s case for several months. The record indicates that appellant has refused to cooperate with any psychiatrist since Heath left the unit where appellant resided. Willenbring also pointed to appellant’s request to have a polygraph test as an example of his subtle psychotic symptomatology.
When asked whether he was disturbed by Bruggemeyer’s change in appellant’s diagnosis two days after another physician diagnosed appellant’s schizophrenia as being in remission, Willenbring stated that because the symptoms were subtle, it is possible that two observers would come up with different opinions. Willenbring testified that appellant has no insight into his symptomatology because appellant does not see himself as mentally ill. Willenbring also testified that neuroleptic medications had been beneficial to appellant in the past, and because appellant did not acknowledge the benefit he received from the medications in the past, Willenbring concluded that appellant could not express a clear, reasoned choice concerning the medication.
The district court concluded that appellant does not have the capacity to make decisions regarding administration of neuroleptic medication and authorized administration of the medication for a two-year period. Appellant challenges the determination that he lacks the capacity to give or withhold consent to take neuroleptic medication.
Court approval is required to administer neuroleptic medication to a person who refuses it. Minn. Stat. § 253B.092, subd. 8(a) (2002). See also Jarvis v. Levine, 418 N.W.2d 139, 148 n.7 (Minn. 1988) (to authorize administration of neuroleptic medication to a patient who opposes such treatment, a district court must find that (1) the patient is legally incompetent to consent to treatment; and (2) the treatment is necessary and reasonable). The person seeking to administer neuroleptic medication must prove by clear and convincing evidence that the patient lacks capacity to give or withhold consent to take neuroleptic medication. See In re Thulin, 660 N.W.2d 140, 145 (Minn. App. 2003) (holding that district court finding that appellant lacked capacity to make decision about neuroleptic medication was not clearly erroneous where record provided clear and convincing evidence to support finding). On appeal, the record is viewed in the light most favorable to the district court’s decision, and the district court’s findings of fact will not be set aside unless they are clearly erroneous. Minn. R. Civ. P. 52.01; In re Knops, 536 N.W.2d 616, 620 (Minn. 1995). “Where the findings of fact rest almost entirely on expert testimony, the trial court’s evaluation of credibility is of particular significance.” Knops, 536 N.W.2d at 620.
Appellant argues that the evidence presented at the hearing was not clear and convincing evidence that he lacks the capacity to give or withhold consent to take neuroleptic medication.
“A patient is presumed to have capacity to make decisions regarding administration of neuroleptic medication.” Minn. Stat. § 253B.092, subd. 5(a) (2002). In determining a person’s capacity to make decisions regarding administration of neuroleptic medication, the court shall consider whether the person:
(1) . . . 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) . . . demonstrates an understanding of treatment with neuroleptic medications and the risks, benefits, and alternatives; and
(3) . . . 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.
Disagreement with the physician’s recommendation is not evidence of an unreasonable decision.
Id., subd. 5(b) (2002).
Appellant argues that his disagreement with his new physician may not be used as evidence that his decision to withhold consent to take neuroleptic medication was unreasonable. But nothing in the district court’s order indicates that the court treated appellant’s disagreement with his physician as evidence that appellant’s clear choice to not take neuroleptic medication was not a reasoned choice. The court found that appellant’s choice is not a reasoned choice because appellant does not believe that he is mentally ill and appellant’s choice is based, in part at least, “upon an enduring belief that he will be released from his commitment by some operation of law.”
Appellant also argues that it was not beyond reason for him to disagree with the medication choice of his new physician when his previous physicians consistently noted that his symptoms were in remission and his new physician prescribed medication within 48 hours after his case was transferred to her. This would be a persuasive argument if the evidence presented at the hearing indicated only that appellant’s case was transferred to his new physician, and, within 48 hours, the new physician prescribed neuroleptic medications. But the evidence is not so limited.
Bruggemeyer testified that two days before appellant was assigned to her unit, he was placed in protective isolation because he had become more and more hostile and vocal about his displeasure with specific members of his treatment team. She also testified that after appellant was assigned to her unit, he was often observed talking to himself, and that when she tried to talk to appellant about the hearing on the petition to administer neuroleptic medication, he stood up, glared at her, made a statement that she construed as a veiled threat, and walked away.
Bruggemeyer also testified that since appellant was moved to the new unit, his behaviors “have escalated somewhat in his interactions with peers. . . . It is possible that a medical emergency could develop if we wait an extensive period of time.” Willenbring testified that appellant “is suspicious. He believes other people are lying about him and as a result he has become quite irritable and more difficult to manage on the unit.”
The testimony of both Bruggemeyer and Willenbring indicates that appellant’s condition has changed since he was in the care of his previous physician and that he is again exhibiting symptoms of schizophrenia. Because there is evidence that the symptoms have returned, the district court did not err when it concluded that appellant objects to treatment with neuroleptic medication because he does not believe that he is mentally ill and that his clear choice is not a reasoned choice. See In re Peterson, 446 N.W.2d 669, 673 (Minn. App. 1989), review denied (Minn. Dec. 1, 1989) (patients who deny that they have a mental disorder in face of good evidence to the contrary lack capacity to rationally decide about medication).
Appellant argues that because Willenbring did not ask him any questions about the efficacy of the medication, there was not competent evidence before the district court as to whether he “demonstrates an understanding of treatment with neuroleptic medications and the risks, benefits, and alternatives” as required by Minn. Stat. § 253B.092, subd. 5(b)(2).
The record supports appellant’s claim that Willenbring failed to question appellant about his understanding of treatment with neuroleptic medication. But this failure does not demonstrate that the court’s finding that appellant lacked capacity was not proven by clear and convincing evidence. An understanding of treatment with neuroleptic medication is only one of the things that the court is to consider when determining a person’s capacity. Willenbring testified that he did not ask appellant if he understood what the neuroleptic medication was for because
[t]hat would not have changed my opinion with regard to his capacity. If he could have listed for me the indications of psychosis, the side effects of anti-psychotics, then it would have changed my opinion. The reason for that is because he clearly has no insight into his current symptomatology. He does not see himself as mentally ill. He does not see himself as impaired in any way. He sees all of his problems residing in other people and in the unit. So because of that I think he has no insight at all into whether these would be beneficial to him or not, irrespective of whether he has cognitive understanding.
In other words, Willenbring concluded that appellant lacked capacity even without asking appellant about his understanding of neuroleptic medication because appellant did not demonstrate an awareness of the nature of his situation, which is another one of the things that the court is to consider when determining a person’s capacity. Minn. Stat. § 253B.092, subd. 5(b)(3). Even if we assumed that appellant understands the risks and benefits of, and alternatives to neuroleptic medication, the record would not demonstrate that he has an awareness of his mental illness and that his choice to refuse neuroleptic medication is reasonable and not based on delusion. Minn. Stat. § 253B.092, subd. 5(b)(1)(3).
In Peterson, this court set forth a clinical definition of competency to refuse neuroleptic medication based on the Jarvis court’s citation to James C. Beck, Right to Refuse Anti-Psychotic Medication: Psychiatric Assessment and Legal Decision-Making, 11 Mental and Physical Disability Law Rptr. 368 (1987). 446 N.W.2d at 674; See Jarvis, 418 N.W.2d at 148 n.7 (citing Beck for “an excellent analysis of the types of factors to be considered in deciding whether or not to override an incompetent patient’s refusal”). To be found competent, a patient must have “(1) an awareness of having a mental disorder; (2) sufficient knowledge about medication and the mental disorder; and (3) a refusal that is not based upon delusional beliefs.” Peterson, 446 N.W.2d at 673 (citing Beck at 369). “The Beck criteria require a finding of all three [elements] in favor of the patient for competency to be found. Those advocating the use of involuntary neuroleptics need not disprove all three in order to prevail.” Id. The Beck criteria essentially mirror the statutory elements. See Minn. § 253B.092, subd. 5.
Viewed in the light most favorable to the district court’s findings, the record contains clear and convincing evidence that appellant does not have the capacity to make decisions regarding the administration of neuroleptic medication. The district court’s finding that appellant lacks capacity is not clearly erroneous.
 Willenbring described “residual schizophrenia” as a term used to describe the persistent, yet more subtle symptoms of the disease that remain as a patient ages.