This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






In re:


Barry Alan Tolbers.


Filed ­­­April 13, 2004


Harten, Judge


Freeborn County District Court

File No. P4-03-731


Brandon V. Lawhead, Lawhead Law Offices, 301 South Main Street, Austin, MN 55912 (for appellant)


David J. Walker, Assistant Freeborn County Attorney, 411 South Broadway, Albert Lea, MN 56007 (for respondent)


            Considered and decided by Harten, Presiding Judge, Randall, Judge, and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N



            Appellant challenges the district court’s order to administer neuroleptic medication, arguing that (1) he has the capacity to make an informed decision on medication, and (2) there are less risky options for treatment.  Because the district court’s finding of incapacity is not clearly erroneous, and because the record supports the district court’s conclusion that less risky options are not available, we affirm.


Appellant Barry Alan Tolbers was charged with first-degree assault after an incident in which he barricaded himself in his residence for nine hours and fired roughly 60 rounds of ammunition, some of which hit a police squad car.  After being charged with assault, appellant moved the district court for an order determining that he was incompetent to proceed to trial under Minn. R. Crim. P. 20.  The district court appointed Dr. Rosemary Linderman to evaluate appellant.  During the evaluation interview, appellant discussed how “they” were harassing him and invading his privacy through a tracking system, that “they” were against him, and that “they” meant his “family, friends, the community, Power 96, [and] strangers.”  Dr. Linderman found that appellant demonstrated “a high risk of danger to himself and others” and concluded that he met the statutory criteria for commitment as mentally ill and was incompetent to stand trial.  The district court thereupon suspended criminal proceedings.

            In May 2003, a petition for appellant’s commitment was filed, and the district court appointed Dr. Theodore Surdy as an examiner.  Appellant told Dr. Surdy that he did not know why he was currently being held in custody and believed he had violated probation related to a prior drunk-driving conviction.  Appellant also denied any symptoms consistent with psychotic, delusional, or anxiety diagnoses.  Dr. Surdy recommended commitment, finding that appellant suffered from “a serious mental illness that is manifest to such a degree that he is a danger to himself and others.”  The district court found appellant mentally ill and dangerous and committed appellant to the Minnesota Security Hospital (MSH) in St. Peter.

            In October 2003, Dr. Lorri Sills, appellant’s treating psychiatrist at MSH, requested court authorization to administer neuroleptic medications to appellant.  Dr. Sills noted that, although appellant was not showing signs of a mood disorder, depression, or mania, he denied any mental illness and refused to consent to treatment with neuroleptic medications.  Dr. Sills stated that appellant became less opposed to taking the medications after they discussed the different types of medications available and his treatment goal of competency to resolve his criminal charges.

            The district court appointed Dr. George V. Komaridis to evaluate appellant regarding involuntary administration of neuroleptic medications.  During his interview with appellant, appellant refused to discuss the shooting incident because of his pending criminal charges; he went on to imply that his assault charge resulted from a police conspiracy to discredit him.  Appellant understood that his placement at MSH was due to a diagnosis of mental illness, but denied being mentally ill and stated that he has no need for treatment.  Dr. Komaridis recommended approval of the administration of neuroleptic medications, concluding that appellant’s “total refusal to take responsibility for his inappropriate actions, and his denial of having any problems that may have contributed towards those actions, suggests that [appellant] remains incompetent regarding his own self care and treatment.”

            The district court found that appellant lacked the capacity to determine whether the proposed treatment was necessary or desirable due to his denial of any mental illness and that the risk of any potential side effects of the medication was outweighed by the benefit of the treatment.  The district court reasoned that “[appellant]’s prognosis without medication is unpredictable because his psychotic symptoms can’t be treated without neuroleptic medications.  The alternative of waiting to see whether his symptoms simply go away without treatment is unacceptable.”  The court order authorized MSH to administer to appellant a daily dose of up to 20 milligrams of Abilify, a neuroleptic medication (or an equivalent dosage of an alternative FDA approved anti-psychotic medication).  Appellant now challenges that order.


1.         Capacity

A district court’s finding of capacity is generally not reversed unless it is clearly erroneous.  See e.g., In re Janckila, 657 N.W.2d 899, 903-04 (Minn. App. 2003) (district court’s capacity finding was not clearly erroneous).  “Where the findings of fact rest almost entirely on expert testimony, the trial court’s evaluation of credibility is of particular significance.”  In re Knops, 536 N.W.2d 616, 620 (Minn. 1995).

Neuroleptic medications may not be administered without a court order to patients who refuse the treatment.  Minn. Stat. § 253B.092, subd. 8 (a) (2002); see Jarvis v. Levine, 418 N.W.2d 139, 148 (Minn. 1988) (competent persons may refuse neuroleptic medications).  Patients are presumed capable of making decisions regarding neuroleptic medications.  Minn. Stat. § 253B.092, subd. 5(a) (2002).  But when a patient does not consent to the treatment, a court must determine whether the patient has the capacity to make an informed decision about the treatment, based on 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.

Disagreement with the physician’s recommendation is not evidence of an unreasonable decision.

Id., subd. 5(b) (2002).

Appellant argues that he demonstrated an awareness of his situation by exercising his right to remain silent because of his outstanding criminal charges.  But appellant told Dr. Komaridis that the shooting incident did not happen and that his outstanding assault charge was an attempt by police to discredit him.  Dr. Komaridis testified that his recommendation for treatment may have differed if appellant simply refused to talk about the incident for fear of incrimination, but “[appellant] was quite adamant in his position that it never happened.”

Appellant also argues that he was aware of his situation by acknowledging that he had been admitted to MSH because of the “extreme stress in his life.”  But appellant denied any mental illness to Dr. Sills and Dr. Komaridis and during his testimony.  See In re Thulin, 660 N.W.2d 140, 145 (Minn. App. 2003) (sufficient evidence of incapacity where patient lacked insight into mental illness and treating physician weighed risks and benefits to drugs).

Appellant claims that he demonstrated an understanding of the risks, benefits, and alternatives to neuroleptic medications because he knew that potential side effects included shaking, drowsiness, waking, memory loss, and bleeding.  But appellant recognized no benefits of the medications, and Dr. Sills testified that appellant would be closely monitored for any beneficial results or potential side effects and that Abilify was the newest neuroleptic medication with the least risk of side effects.

Appellant argues that he understood alternatives to neuroleptic medications because he recognized that his time at MSH was beneficial.  But Dr. Sills testified that time, alone, rarely resolves psychotic symptoms, and Dr. Komaridis testified that appellant’s lack of insight into mental illness precluded alternative forms of treatment.  We conclude that the district court’s finding that appellant was incapable of making an informed decision is supported by the record and is not clearly erroneous.

2.         Necessity of Neuroleptic Medications

Appellant claims that treatment with neuroleptic medications is unnecessary because less risky treatments are available.  When an individual lacks the capacity to make informed decisions regarding neuroleptic treatment, a court’s decision as to whether the medications should be administered must be based on several factors: “(1) the person’s family, community, moral, religious, and social values; (2) the medical risks, benefits, and alternatives to the proposed treatment; (3) past efficacy and any extenuating circumstances of past use of neuroleptic medications; and (4) any other relevant factors.”  Minn. Stat. § 253B.092, subd. 7(c) (2002).  Persons seeking to administer neuroleptic medications must prove that the medication is necessary by clear and convincing evidence.  In re Peterson, 446 N.W.2d 669, 672 (Minn. App. 1989), review denied (Minn. 1 Dec. 1989).

Appellant argues that inpatient treatment at MSH without neuroleptic drugs is a less risky alternative.  Dr. Sills testified that, although “[s]ome rare individuals do have a resolution of their psychotic symptoms,” resolution could take years or never happen.  Dr. Komaridis admitted that time spent in a hospital setting may benefit a person suffering from appellant’s symptoms, but that appellant’s denial of any mental illness would also have to be taken into account.  Dr. Komaridis stated that appellant’s refusal to acknowledge his mental illness eliminated other treatment options.  “[O]ther standard therapeutic alternatives which require some cognitive involvement in the therapeutic process by him are cancelled out in this case by virtue of the fact he doesn’t believe he has a problem he has to work on.”    Accordingly, the passage of time is not a reasonable alternative to neuroleptic treatment of appellant’s symptoms.

There is no evidence in the record regarding any of appellant’s family, moral, religious, or social values that oppose the use of neuroleptic medications in treating a mental illness.  Both medical experts testified about the benefits of neuroleptic medications in resolving appellant’s psychotic symptoms and the reduced risk of side effects in newer medications, including Abilify.  They also testified that alternative forms of treatment would not be effective in treating appellant given his denial of any mental illness.  Appellant has no prior experience with neuroleptic medications.  We conclude that the record contains clear and convincing evidence to support the district court’s finding that neuroleptic medications are necessary to adequately treat appellant.