B.D., In Interest of

• Decision Date: 18 January 1994
• Docket Number: No. 930408,930408
• Citation: 510 N.W.2d 629
• Parties: In the Interest of B.D., Respondent and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 629

510 N.W.2d 629

In the Interest of B.D., Respondent and Appellant.

Civ. No. 930408.

Supreme Court of North Dakota.

Jan. 18, 1994.

Gregory Ian Runge, Bismarck, for respondent and appellant.

Bruce B. Haskell, Asst. State's Atty., Bismarck, for appellee.

VANDE WALLE, Chief Justice.

B.D. appealed from the order of the Burleigh County Court requiring that B.D. be hospitalized for a period of ninety days and authorizing treatment of B.D. by forced medication. We affirm and remand with instructions.

B.D.'s aunt initiated a petition for involuntary commitment on December 7, 1993. The petition stated that B.D. was believed to be mentally ill because he had a history of chronic paranoid schizophrenia and severe high blood pressure. The petition alleged that B.D. refused to take medication for these ailments, and that he has exhibited danger to himself by failing to take proper safety precautions when exposed to severe winter weather conditions. The petitioner also expressed concern that B.D. was a threat to family and others.

The Burleigh County Court held a preliminary hearing on the petition on December 14, 1993. The county court found probable cause that B.D. is mentally ill and requiring treatment and ordered hospitalization at St. Alexius Medical Center in Bismarck, North Dakota, for fourteen days. A treatment hearing was scheduled for December 28, 1993.

Following the treatment hearing, the county court ordered that B.D. be committed to St. Alexius Medical Center for a period of ninety days. The county court also authorized involuntary treatment of B.D. with prescribed medication. On appeal, B.D. challenges the sufficiency of the evidence upon which the county court determined that B.D. is a person requiring treatment. B.D. also challenges the county court's order authorizing forced medical treatment of B.D.

Before a court may issue an order for involuntary treatment, the petitioner must prove by clear and convincing evidence that the respondent is a person requiring treatment. NDCC Sec. 25-03.1-19; In Interest of D.H., 507 N.W.2d 314 (N.D.1993). To establish that an individual is a person requiring treatment, petitioner must show that the individual is mentally ill and that there is a reasonable expectation that, if the individual is not hospitalized, there exists a serious risk of harm to the individual, to others, or to property. NDCC Sec. 25-03.1-02(11); D.H., supra. Review on appeal is limited to an examination of the procedures, findings, and conclusions of the lower court. NDCC Sec. 25-03.1-29; In Interest of J.A.D., 492 N.W.2d 82 (N.D.1992). The focus of this appeal is whether there was clear and convincing evidence to support the findings of fact by the county court that B.D. was a person requiring treatment, particularly forced medical treatment.

Section 25-03.1-02(10), NDCC, defines "mentally ill person" as "an individual with an organic, mental, or emotional disorder which substantially impairs the capacity to use self-control, judgment, and discretion in the conduct of personal affairs and social relations." Dr. Igmidio Santos, a psychiatrist and the current medical director of West Central Human Service Center, testified that he had examined B.D. and had been treating B.D. at St. Alexius Medical Center for one week prior to the hearing. Dr. Santos, who was the only expert to testify at the hearing, diagnosed B.D. as suffering from "schizophrenia, paranoid type." The testimony of Dr. Santos, which was essentially uncontradicted at the hearing, and which we do not repeat here, shows by clear and convincing evidence that B.D. fits the statutory description of a "mentally ill person".

A mentally ill person is not necessarily a "person requiring treatment", however. To establish that B.D. is a person requiring treatment, petitioner was also required to show by clear and convincing evidence that "there is a reasonable expectation that if the person is not treated there exists a serious risk of harm to that person, others, or property." NDCC Sec. 25-03.1-02(11). B.D. argues that the Burleigh County Court erred by concluding the evidence was clear and convincing that, if B.D. were not treated, there was a substantial likelihood that B.D. would kill or inflict serious bodily harm on another, or suffer a substantial deterioration in his physical and mental health. See NDCC Secs. 25-03.1-02(11)(b), (c), and (d).

Don D., B.D.'s father, testified that B.D. had lived with him in California for all but approximately six months of B.D.'s life. B.D. had been involuntarily hospitalized in California on two occasions. Don D. testified that, prior to the initial hospitalization, B.D. had stopped eating and began living in the canyons of California. After being released from the hospital, B.D. took his prescribed medication for approximately three years. He later stopped taking the medication, however, which led to B.D. being hospitalized a second time. Upon release, medicine was prescribed for B.D., both for mental illness and for hypertension.

In September 1993, B.D. again stopped taking his medication. Dr. Santos testified that, during the time that B.D. has been hospitalized at St. Alexius, he has refused all medication. Although Dr. Santos admitted that other doctors who had examined B.D. did not view B.D.'s hypertension as posing an immediate danger to B.D., Dr. Santos testified that there was a reasonable expectation that B.D. would be at serious risk of harm to himself if he is not treated, particularly because "he's not eating. He can't take care of himself."

Regarding whether B.D. could pose a threat to others if he is not treated, Don D. testified that B.D. had made an ambiguous threat against him. According to Don D., "He word[ed] it carefully. I would have to say he's warned me that my life is in severe danger by being here, that I should leave immediately. That I can be killed and go to hell real quick. So I take that as a threat." Don D. testified that, on one occasion, B.D. had used physical force against him. Also, in 1982, B.D. had maimed and killed some kittens.

Other threatening behavior was attested to by Dr. Santos: "[T]here was a time when one of the female patients asked to be put in the quiet room. He thinks that the staff is going to do something to her. I think he likes this other female patient. He threatened to hurt the staff. In fact, he made [a] karate stand, ready to strike...." It was also discovered that B.D. had concealed a butter knife in his shoe.

We conclude that the Burleigh County Court did not err in its determination that B.D. is a person requiring treatment under the statutory definition in section 25-03.1-02(11), NDCC.

The county court also authorized the involuntary treatment of B.D. with prescribed medication. Dr. Santos requested this authorization under section 25-03.1-18.1, NDCC. He, along with another doctor, whom Dr. Santos identified as Dr. Nguyen, certified: that the proposed prescribed medication is clinically appropriate and necessary to effectively treat B.D.; that there is a reasonable expectation that, if B.D. is not treated as proposed, there is a serious risk of harm to B.D. or to others; that B.D. was offered the treatment and refused it; that the prescribed medication is the least restrictive form of intervention necessary to meet the treatment needs of B.D.; and that the benefits of the treatment outweigh the known risks to B.D. NDCC Sec. 25-03.1-18.1(1).

Before a court may authorize involuntary treatment, subsection (3) of section 25-03.1-18.1, NDCC, requires that each of the factors certified to by Dr. Santos and Dr. Nguyen be proved by clear and convincing evidence. The court may consider evidence including:

"(1) The danger the patient presents to self or others;

(2) The patient's current condition;

(3) The patient's past treatment history;

(4) The results of previous medication trials;

(5) The efficacy of current or past treatment modalities concerning the patient;

(6) The patient's prognosis; and

(7) The effect of the patient's mental condition on the patient's capacity to consent."

NDCC Sec. 25-03.1-18.1(2)(a).

B.D. argues that the request for authorization for involuntary treatment was flawed because Dr. Nguyen's signature on the request was difficult to read and Dr. Santos, rather than Dr. Nguyen himself, testified that Dr. Nguyen had signed the request. B.D. contends that there was no foundation laid by Dr. Santos regarding his familiarity with Dr. Nguyen's signature. B.D. objected on hearsay grounds when Dr. Santos was asked whether Dr. Nguyen concurred in his opinion that B.D. requires treatment. However, B.D. did not earlier object to the testimony of Dr. Santos that it was Dr. Nguyen who had signed the request; we will not consider issues raised for the first time on appeal. E.g. Thomas v. Stickland, 500 N.W.2d 598 (N.D.1993).

B.D. also argues that Dr. Nguyen should have been required to testify at the hearing. We might agree that something more than a signature would be appropriate to fully convince the court that the doctor concurs in Dr. Santos's opinion that B.D. is in need of forced medication, but the statute does not specifically require that both doctors testify at the treatment hearing. ...