This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
In the Matter of the Civil Commitment of Renee P. Sharp
Hennepin County District Court
File No. P9-93-35403
Renee P. Sharp, P.O. Box 581255, Minneapolis, MN 55410 (pro se 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 Harten, Presiding Judge; Halbrooks, Judge; and Minge, Judge.
Appellant appeals pro se the district court’s orders civilly committing her as mentally ill and authorizing the involuntary administration of neuroleptic medication. She argues that the orders violate her constitutional rights and that the evidence does not support the district court’s findings. We affirm.
Appellant Renee P. Sharp is a 48-year-old woman with a long history of mental illness. On September 26, 2003, police officers were called to appellant’s residence, where they found her shouting at people who were not present. Police handcuffed and restrained her after she became verbally abusive and lunged at them. The officers then transported her to Hennepin County Medical Center (HCMC), where Tami Herrmann, a registered nurse and certified nurse practitioner, placed her on emergency hold. On September 29, 2003, Hennepin County filed a petition to commit appellant as mentally ill and to authorize the involuntary administration of neuroleptic medication.
Appellant did not attend the hearing held on October 9, 2003. Instead, she submitted into evidence a handwritten 60-page letter and her medical records were introduced into evidence. No witnesses were called. On October 16, 2003, the district court committed her, finding that she had a mental illness which posed a substantial likelihood of causing physical harm to herself and others and cannot be treated with less restrictive means. The following day, the district court authorized use of neuroleptic medication to treat appellant, finding that she lacked the capacity to consent to medication, the treatment was necessary and reasonable, and the benefits outweighed the risk. Appellant, pro se, appeals these orders.
The first issue is whether the two orders are constitutional. The general rule is that constitutional claims cannot be raised on appeal if not presented to the district court. In re Welfare of C.L.L., 310 N.W.2d 555, 557 (Minn. 1981). Despite the fact that appellant did not directly present her arguments to the district court, we address them in the interest of justice. See Tischendorf v. Tischendorf, 321 N.W.2d 405, 410 (Minn. 1982).
Questions regarding the constitutionality of state statutes and procedures are reviewed de novo. Hamilton v. Comm’r of Pub. Safety, 600 N.W.2d 720, 722 (Minn. 1999). Statutes are presumed constitutional, and a court should exercise its power to declare a statute unconstitutional only when necessary. Id.
Appellant first argues that her emergency hold was unconstitutional because it was signed by a nurse rather than a doctor. Appellant does not appear to claim that the emergency-hold statute itself is unconstitutional, only that it was unconstitutional as applied. Minn. Stat. § 253B.05, subd. 2(c) (Supp. 2003), provides:
A person may be admitted to a treatment facility for emergency care and treatment . . . with the consent of the head of the facility under the following circumstances: (1) a written statement is made by the medical officer, or the officer’s designee on duty at the facility, if the designee is a licensed physician, a registered physician assistant, or an advanced practice registered nurse who is knowledgeable, trained, and practicing in the diagnosis and treatment of mental illness . . . .
If appellant is arguing that the hold order was invalid simply because it was signed by a nurse, her argument must fail. The question is whether the signing nurse meets the statutory requirements.
An advanced practice registered nurse is not defined in chapter 253B. The Public Health Occupation Chapter, however, defines such a person as “an individual licensed as a registered nurse by the board and certified by a national nurse certification organization acceptable to the board to practice as a clinical nurse specialist, nurse anesthetist, nurse-midwife, or nurse practitioner.” Minn. Stat. § 148.171, subd. 3 (2002). Because Herrmann is a registered nurse and certified nurse practitioner, she is a qualified individual under the statute if she is knowledgeable, trained, and practicing in the treatment of mental illness. Appellant neither raised the question nor presented any evidence that Herrmann lacked qualifications. In this case, we do not presume error. See White v. Minn. Dep’t of Natural Res., 567 N.W.2d 724, 734 (Minn. App. 1997), review denied (Minn. Oct. 31, 1997). Rather, we conclude that the emergency hold was valid.
Appellant also appears to argue that the statute allowing for involuntary medication is unconstitutional. But she cites no legal argument to support her claim. Minnesota has held that involuntary administration of neuroleptic medication does not violate the state constitutional right to privacy if certain procedural protections are provided. Jarvis v. Levine, 418 N.W.2d 139, 150 (Minn. 1988). The supreme court ruled that in non-emergency situations, there must be a judicial finding of incapacity, necessity, and reasonableness before the medication can be administered. Id. at 144. The current statute provides those guarantees.
Prior to a judicial hearing, drugs can be administered only in certain situations. The administration is limited to emergency situations where it is necessary to prevent serious physical harm, can only be performed by a treating physician, is limited to 14 days, and the circumstances must be specifically documented. Minn. Stat. § 253B.092, subd. 3 (2002). Jarvis, which required judicial review, involved only non-emergency situations. Jarvis, 418 N.W.2d at 144. Because appellant does not articulate any legal argument why authorizing medication in emergencies violates her rights and because statutes are presumed constitutional, we dismiss her claim.
The next issue is whether there is sufficient evidence to support the district court’s finding that appellant posed a substantial likelihood of physical harm to herself or others. When reviewing a commitment, this court is limited to examining whether the district court complied with the requirements of the Civil Commitment Act. In re Janckila, 657 N.W.2d 899, 902 (Minn. App. 2003). Before the district court may commit a person as mentally ill, it must find that person mentally ill by clear and convincing evidence. Minn. Stat. § 253B.09, subd. 1 (Supp. 2003). This court will not set aside the district court’s findings of fact unless they are clearly erroneous. In re McGaughey, 536 N.W.2d 621, 623 (Minn. 1995). But we review de novo whether there is clear and convincing evidence in the record to support the district court’s conclusion that appellant meets the standard for commitment. In re Thulin, 660 N.W.2d 140, 144 (Minn. App. 2003).
The Civil Commitment Act defines a mentally ill person as
any person who has . . . a substantial psychiatric disorder of thought, mood, perception, orientation, or memory which grossly impairs judgment, behavior, capacity . . . to reason or understand . . . 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;
. . . .
(3) a recent attempt or threat to physically harm self or others[.]
Minn. Stat. § 253B.02, subd. 13 (2002). A person cannot be committed under the statute unless he or she has demonstrated an overt act showing a substantial likelihood of physical harm to herself or others. McGaughey, 536 N.W.2d at 623. Speculation that a person may commit such act in the future is not sufficient. Id. But actual harm does not need to have occurred; the statute only requires a substantial likelihood of physical harm. Id.
Here, appellant had not eaten for two days prior to her hospitalization and failed to take her prescribed neuroleptic medications. She had refused to let a doctor examine her ankle, which had been in a cast for nearly eight months. See In re Perkins, 404 N.W.2d 307, 309 (Minn. App. 1987) (upholding commitment when the appellant failed to take his prescribed medicine); In re Emond, 366 N.W.2d 689, 692 (Minn. App. 1985) (upholdingcommitment based on the appellant’s overt failure to seek both food and medical care). She threatened to commit suicide by jumping out of her apartment window. She kicked a nurse in the chest, lunged at another nurse, and acted aggressively toward other hospital staff. See In re Gonzalez, 456 N.W.2d 724, 729 (Minn. App. 1990) (affirming commitment because appellant posed “a likelihood of harm to himself by his conduct which may outrage others and result in attack on him.”). The district court’s findings of fact are not clearly erroneous and there is clear and convincing evidence in the record to support the district court’s determination that appellant is mentally ill.
The final issue is whether appellant meets the statutory requirements for involuntary administration of neuroleptic medication. Court approval is required to administer neuroleptic medications to a person who refuses it. Minn. Stat. § 253B.092, subd. 8(a) (2002). “A patient is presumed to have capacity to make decisions regarding administration of neuroleptic medication.” Id., subd. 5(a) (2002). In determining a person’s capacity to make decisions regarding administration of neuroleptic medication, the court shall consider
(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.
Id., subd. 5(b). The person seeking to administer the medication must prove by clear and convincing evidence that the patient lacks capacity to give or withhold consent. Thulin, 660 N.W.2d at 145.
When deciding whether to administer neuroleptic medications, the court should consider what a reasonable person would do, considering: “(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 . . .; and (4) any other relevant factors.” Minn. Stat. § 253B.092, subd. 7(c) (2002).
Here, the doctor’s notes indicate that appellant is an “unreliable consenter” because she has no insight into her mental illness, does not believe she needs medication, is not aware of the possible consequences of refusing treatment, and does not indicate a clear, reasoned, and undelusional choice regarding treatment. Additionally, doctors prescribed these medications in the past and appellant refused to take them.
The notes further indicate that only FDA approved medications would be administered, a treatment team would monitor appellant, and appellant has not suffered any adverse reactions from the medications in the past. Finally, these medications would increase her ability to live safely in the community. Without the medication, appellant’s symptoms would continue. Therefore, there is sufficient evidence in the record to support the district court’s finding. See Janckila, 657 N.W.2d at 904 (affirming administration when doctors testified that appellant did not understand his illness and his need for medication); Thulin, 660 N.W.2d at 145 (affirming court-ordered administration when appellant had no insight into illness, doctors testified that the benefits outweighed the risks, and appellant would be closely monitored).