This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-96-1692

In Re: Marianne Procino.

Filed November 5, 1996

Affirmed

Parker, Judge

Olmsted County District Court

File No. P6961481

Gregory M. Spoo, 423 Third Avenue Southeast, Suite 201, Rochester, MN 55904-4876 (for appellant Marianne Procino)

Raymond F. Schmitz, Olmsted County Attorney, Susan J. Mundahl, Assistant County Attorney, Olmsted County Government Center, 151 Fourth Street Southeast, Rochester, MN 55904-3710 (for respondent Olmsted County Department of Social Services)

Considered and decided by Parker, Presiding Judge, Peterson, Judge, and Willis, Judge.

U N P U B L I S H E D O P I N I O N

PARKER, Judge

Marianne Procino appeals from a district court judgment committing her as mentally ill and an order authorizing neuroleptic medication. Procino argues that the district court had insufficient evidence (1) to find her mentally ill and commit her to the St. Peter Regional Treatment Center and (2) to authorize the hospital to treat her with neuroleptic medication for a six-month period. Instead, she contends, the evidence in the record showed she should not have been committed, she was competent to make her own decision about the medication, and treatment with neuroleptic medication was not reasonable and necessary. We affirm.

D E C I S I O N

District court findings will not be set aside unless clearly erroneous. Minn. R. Civ. P. 52.01; In re McGaughey, 536 N.W.2d 621, 623 (Minn. 1995). On questions of law, this court need not defer to the district court. See In re Knops, 536 N.W.2d 616, 620 (Minn. 1995) (whether evidence is sufficient to show factors for commitment as mentally ill and dangerous are met is legal question subject to de novo review). If the record does not provide clear and convincing evidence that the factors for commitment as mentally ill are met, the commitment will be reversed. McGaughey, 536 N.W.2d at 624.

1. Procino challenges her commitment as mentally ill under Minn. Stat. § 253B.02, subd. 13 (1994) (definition of a mentally ill person). She first argues there was insufficient evidence to show that her disorder grossly impaired her judgment, behavior, capacity to recognize reality, or to reason or understand, all of which was manifested by grossly disturbed behavior or faulty perceptions. Minn. Stat. § 253B.02, subd. 13(a).

The district court found these criteria were met, citing her inability to organize her thoughts while at the hospital and the fact that sometimes she was incoherent and believed the food was poisoned and that the staff were trying to kill her. These findings are supported by the record and provide clear and convincing evidence that these statutory criteria were met. Id.

Next, Procino contends the evidence did not support the district court finding that her disorder posed a substantial likelihood of physical harm to herself, as demonstrated by a failure to obtain necessary food, clothing, shelter, or medical care. Minn. Stat. § 253B.02, subd. 13(b)(i). She cites Dr. Komaridis's testimony that although she led a marginal existence, she had been able to provide for herself in the previous year without neuroleptic medication or treatment. She contends that testimony by the other mental health experts who believed she should be committed did not provide specific instances of harm.

While Dr. Komaridis was not sure Procino required commitment, Dr. Bauer, Procino's treating physician, and Dr. Lucas, a licensed psychologist, believed commitment was necessary to prevent Procino from harming herself. Dr. Slattery, a psychiatrist from the Mayo Clinic, also testified that Procino's condition required treatment.

The court found that Procino's mental state interfered with her ability to appreciate the gravity of her thyroid disease and the increased risk for stroke, heart attack, kidney disease or eye disease because of her "severely high" blood pressure. Although she began to take blood pressure medication during her hospitalization, she was unwilling to take it on discharge. Her hygiene was poor and she wore urine-soaked clothing. She took only one shower while at the hospital and then only at the prompting of nursing staff. While in the community, she was able to obtain only "marginal" shelter. She was guarded and resisted giving a medical history. A relative told hospital staff that Procino had responded to neuroleptic medication in the past, but on discharge became noncompliant with the medication.

The court's evaluation of expert testimony is of particular significance, and its decision to credit the opinions of experts who recommended commitment is not clearly erroneous. Knops, 536 N.W.2d at 620. We hold that the district court finding that Procino would be unable to obtain necessary food, clothing, shelter, or medical care outside of the hospital is supported by the evidence and is not clearly erroneous. See In re Davis, 371 N.W.2d 91, 93 (Minn. App. 1985) (patient's inability to comply with dietary control necessitated by severe diabetes, her actions in leaving windows open in sub-zero weather based on belief gas fumes were present, and her belief that food was poisoned showed inability to provide herself food, shelter and medical care).

Procino next argues that the district court erred in finding no reasonable alternative to judicial commitment. Minn. Stat. § 253B.09, subd. 1 (1994) (if no suitable alternative to judicial commitment, court shall commit patient to least restrictive treatment program); see County of Hennepin v. Levine, 345 N.W.2d 217, 219 (Minn. 1984) (emphasizing treatment of mentally ill individuals in least restrictive manner). She contends that while she led a marginal existence before her recent hospitalization, there was no evidence that she could not live on her own. She relies on Dr. Komaridis's testimony that she was able to care for herself without neuroleptic medication and treatment and that judicial commitment was not essential. She also argues that the options of a conservatorship, guardianship, or community-based services were not considered.

The court here rejected less restrictive alternatives to commitment because community-based treatment programs required Procino's voluntary agreement to participate in programs and to take neuroleptic and blood pressure medication and because Procino does not have insight into the gravity and seriousness of her medical problems.

The testimony showed that Procino would not continue taking medication once she was released, which would make community placement inappropriate. There was no evidence that a conservatorship or guardianship would be appropriate. Instead, the evidence supports the district court's determination that no alternative disposition to civil commitment existed and that Procino should be committed to the regional treatment center. See In re Melas, 371 N.W.2d 653, 655 (Minn. App. 1985) (upholding district court's rejection of voluntary treatment based on patient's lack of insight into illness and inability to agree to voluntary treatment).

2. The remaining issues concern the Jarvis order. A facility seeking to treat a nonconsenting, incompetent, committed patient with neuroleptic medication must first obtain pretreatment judicial review. Jarvis v. Levine, 418 N.W.2d 139, 148 n.7 (Minn. 1988); Minn. Stat. § 253B.03, subd. 6c(e)-(o) (Supp. 1995). The district court found that Procino is unable to consent to neuroleptic therapy because she is incompetent to make a rational decision regarding the preferred treatment. Procino contends the court erred in its ruling.

Competency is defined as

(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.

In re Peterson, 446 N.W.2d 669, 673 (Minn. App. 1989), review denied (Minn. Dec. 1, 1989) (citations omitted). Those advocating the use of involuntary medication need not disprove all three factors to prevail. Id.

Procino argues that she displayed sufficient knowledge about the medication and disorder, that Dr. Komaridis explained she was reluctant to take medication because of her fear of adverse reactions, and that the other experts did not address this sufficiently.

Procino has a thought disorder. Dr. Slattery, a psychiatrist from the Mayo Clinic, testified that Procino indicated she did not understand the medication and could not understand the risks and benefits. Medical records showed that she denied her illness and did not want treatment. These facts provided the district court with sufficient evidence from which to conclude she did not have sufficient knowledge about the medication and her disorder. The district court had clear and convincing evidence from which to conclude that Procino was not competent to decide whether to take medication. Id.

The next challenge Procino makes is to the determination of the necessity and reasonableness of the treatment. See Jarvis, 418 N.W.2d at 144 (citing relevant factors). The factors Procino challenges are the extent and duration of changes in behavior patterns and mental activity effected by the treatment and the patient's ability competently to determine for herself whether the treatment is desirable. Id. As discussed above, the district court's decision that Procino is not competent to decide is supported by the record.

Procino contends the district court failed to consider the extent and duration of changes. She cites Dr. Komaridis's testimony as to the effect of the medication, as well as his statements that the effect of neuroleptics is never guaranteed and that side effects could be significant enough so that she would discontinue treatment and decompensate even further.

While Procino faults Dr. Lucas for relying on a report from a relative that neuroleptics had been helpful in the past, mental health experts were unable to obtain further information because she did not wish to discuss her medical history and did not give them permission to obtain other hospital records. The district court, which must assess the credibility of the witnesses, relied upon the testimony of Dr. Slattery as to the necessity and reasonableness of the medication. There was no showing that Dr. Slattery's testimony was prejudiced because she petitioned for authorization to administer the medication. The district court had clear and convincing evidence from which to conclude that neuroleptic medication was medically necessary to treat Procino's thought disorder.

Finally, Procino contends the district court erred in authorizing neuroleptic medication for the six-month duration of the commitment. She contends the petition did not request a particular duration and Dr. Slattery did not testify that it was medically necessary and reasonable to administer the medication for six months. Procino asserts the district court specified the duration of its own accord and without any factual basis for its decision.

Dr. Slattery's affidavit addresses how physicians determine the duration of treatment, including consideration of the benefits and risks to the individual patient and whether there is adequate evidence of substantial benefit to continue medication. Authorization of neuroleptics for the length of the commitment is consistent with Dr. Slattery's affidavit and gives the psychiatrists sufficient flexibility to administer treatment with neuroleptics to fit Procino's circumstances. See Minn. Stat. § 253B.03, subd. 6c(o) (court may authorize administration of neuroleptic medication until end of determinate commitment); cf. In re Steen, 437 N.W.2d 101, 104 (Minn. App. 1989) (discussing need for flexibility in orders, but providing they may not be open-ended as to duration and levels of unspecified medication).

Affirmed.