Gatson, Matter of

• Decision Date: 20 April 1979
• Docket Number: No. 49781,49781
• Citation: 593 P.2d 423,3 Kan.App.2d 265
• Parties: In the Matter of the Treatment of Marilyn GATSON, Proposed Patient.
• Court: Kansas Court of Appeals

Page 423

593 P.2d 423

3 Kan.App.2d 265

In the Matter of the Treatment of Marilyn GATSON, Proposed Patient.

No. 49781.

Court of Appeals of Kansas.

April 20, 1979.

Syllabus by the Court

1. In a proceeding seeking an adjudication that a proposed patient is a mentally ill person as defined in K.S.A.1977 Supp. 59-2902(1), the petitioner must establish beyond a reasonable doubt that the proposed patient is mentally impaired and presently dangerous to himself or herself or others.

2. In testing the sufficiency of evidence supporting a finding of mental illness in an involuntary commitment proceeding, the appellate court is limited to consider whether the evidence, when viewed in the light most favorable to the petitioner, is sufficient to form the basis for a reasonable inference that the proposed patient is mentally impaired and presently dangerous to himself or herself or others.

Barry G. Albin, Kansas City, for appellant.

Michael Grosko, Asst. Dist. Atty., Kansas City, Curt T. Schneider, Atty. Gen., and Nick A. Tomasic, Dist. Atty., for appellee.

Before FOTH, C. J., and PARKS and SWINEHART, JJ.

SWINEHART, Judge:

This is an appeal from an involuntary commitment proceeding wherein the appellant was adjudicated a "mentally ill person" within the meaning of K.S.A.1977 Supp. 59-2902(1) and ordered to Osawatomie State Hospital for treatment.

On December 1, 1977, the brother of the appellant filed a petition alleging the appellant to be a mentally ill person and requesting such an adjudication and commitment for treatment. Counsel was appointed to represent the appellant and a hearing was held on December 21, 1977. The evidence demonstrated that the appellant, a 23 year old female, had been headed toward a successful future earlier in life. However, sometime in 1974 the appellant's behavior began to deteriorate following an unfavorable relationship with a college basketball player.

On November 29, 1977, she was picked up by police officers who reported she was walking down the street nude and that she may have been raped. This incident evidently prompted the filing of the petition by the appellant's brother. Further facts will be discussed below.

At the conclusion of the hearing, the jury found the appellant to be a mentally ill person and the court ordered her to Osawatomie State Hospital for treatment. This appeal followed.

Appellant argues that K.S.A.1977 Supp. 59-2902(1) requires a finding that the proposed patient is presently dangerous to herself or to others, and contends that there was inadequate evidence supporting such a finding.

K.S.A.1977 Supp. 59-2902 provides:

"(1) The term 'mentally ill person' shall mean any person who is mentally impaired to the extent that such person is in need of treatment and who is dangerous to himself or herself or others and

(a) who lacks sufficient understanding or capacity to make responsible decisions with respect to his or her need for treatment, or

(b) who refuses to seek treatment . . . Proof of a person's failure to meet his or her basic physical needs, to the extent that such failure threatens such person's life, shall be deemed as proof that such person is dangerous to himself or herself."

The present statute contains significant changes which were made by amendment in 1976.

"(1) A person who is merely dangerous to property is no longer considered a 'mentally ill person'; (2) the old definition of 'mentally ill person' included a person 'who . . . probably will become dangerous . . .', the new definition deletes the term 'probably will become' and requires a finding that the person is presently dangerous; (3) the word 'care' has been deleted." Note, Senate Bill 26 Mental Patients' Bill of Rights, 16 Washburn L.J. 149, 150 (1976).

The Special Committee on Health which proposed many of the changes noted that "recent federal court decisions and an increasing concern for the protection of the rights of the mentally ill indicate additional standards and procedural requirements which should be added to the existing Kansas law, particularly to those statutes which are concerned with involuntary treatment." Senate Journal, p. 135 (1974). We find no Kansas cases dealing with K.S.A. 59-2902 but recognize a line of federal cases which have considered the degree of dangerousness requisite to a finding of mental illness. In Lessard v. Schmidt, 349 F.Supp. 1078 (E.D.Wis.1972), vacated and remanded on other grounds, 414 U.S. 473, 94 S.Ct. 713, 38 L.Ed.2d 661 (1974), reinstated and enforced, 379 F.Supp. 1376 (E.D.Wis.1974), vacated and remanded on other grounds, 421 U.S. 957, 95 S.Ct. 1943, 44 L.Ed.2d 445 (1975), reinstated, 413 F.Supp. 1318 (E.D.Wis.1976), the Wisconsin civil commitment statutes were struck down on various grounds by a federal district court. The Lessard court relied on dicta in Humphrey v. Cady, 405 U.S. 504, 509, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972), to justify its holding that involuntary commitment may only be based on a finding of mental impairment and dangerousness beyond a reasonable doubt:

"The (Supreme) Court did not directly address itself to the degree of dangerousness that is constitutionally required before a person may be involuntarily deprived of liberty. However, its approval of a requirement that the potential for doing harm be 'Great enough to justify such a Massive curtailment of liberty' implies a balancing test in which the state must bear the burden of proving that there is an extreme likelihood that if the person is not confined he will do immediate harm to himself or others. Although attempts to predict future conduct are always difficult, and confinement based upon such a prediction must always be viewed with suspicion, we believe civil confinement can be justified in some cases if the proper burden of proof is satisfied and dangerousness is based upon a finding of a recent overt act, attempt or threat to do substantial harm to oneself or another." 349 F.Supp. at 1093.

Following Lessard, Nebraska, Iowa and Hawaii involuntary commitment procedures were ruled unconstitutional for failure to require a finding that the proposed patients were mentally impaired and dangerous to themselves or others as evidenced by a recent overt act, attempt or threat. See Suzuki v. Alba, 438 F.Supp. 1106, Syl. P 5, (D.Hawaii 1977); Stamus v. Leonhardt, 414 F.Supp. 439, Syl. P 8 (S.D.Iowa 1976); Doremus v. Farrell, 407 F.Supp. 509, Syl. P 4 (D.Neb.1975). While we do not expressly adopt the above holdings and although technical distinctions may be drawn between types of confinement described as custodial, remedial, interim detention, etc., we are satisfied the above cases are representative of the general concern felt by the legislature when it enacted the amendments to the present statutes dealing with involuntary commitment, and we agree with appellant that a finding of present dangerousness to self or others, coupled with a finding of mental impairment, is required before treatment may be ordered. Although the determination will of necessity be on a case-by-case method, we believe a showing of Present dangerousness will normally require evidence of a recent act, attempt, threat or omission of a serious nature.

In her brief the appellant states:

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