In Interest of C.W.

Decision Date27 March 1990
Citation453 N.W.2d 806
PartiesIn the Interest of C.W. A.E. KADRMAS, M.D., Petitioner and Appellee, v. C.W., Respondent and Appellant. Civ. 900004.
CourtNorth Dakota Supreme Court

John J. Fox (argued), Asst. Atty. Gen., Jamestown, for petitioner and appellee.

Thomas E. Merrick (argued), Jamestown, for respondent and appellant.

MESCHKE, Justice.

C.W. appealed from a commitment to the North Dakota State Hospital for an indefinite period and from an order denying her relief from the indeterminateness of the continuing treatment. We dismiss her appeal as a premature constitutional attack on continuing treatment statutes.

In 1989 at McKenzie County, C.W. was committed to the North Dakota State Hospital on an emergency basis. During that temporary 14 day inpatient commitment, C.W. was diagnosed as a chronic schizophrenic of the undifferentiated type and as suffering from delusions.

C.W. then agreed to an order for outpatient treatment at the Northwest Human Service Center in Williston for a period of 90 days. About three weeks later, this alternate treatment order was amended to return her to the North Dakota State Hospital for inpatient treatment. Before the 90 days were up, the Hospital petitioned in Stutsman County to continue C.W.'s treatment for an indefinite period.

At the hearing, C.W.'s treating psychiatrist testified that outpatient treatment was "at the present time not appropriate." At times, C.W. was confused as to her own identity and was physically and verbally aggressive which required "time out" or seclusion. Although C.W. believed she had heart problems, she would not allow a physical examination or EKG to confirm them. Without examination, her doctor believed these complaints were delusional. Physically, she had "a flexion deformity of the right hand caused by a 1979 suicide attempt while in a delusional and confused state."

Trying to counteract C.W.'s long-standing noncompliance with medication orders, her doctor changed her medication from a daily pill to a biweekly injection. According to her doctor, C.W. needed hospitalization until she responded to the new medicine. He stated that her treatment plan required stabilization before release and that stabilization usually took from three to six months. Despite some improvement, she was responding slowly so her doctor was unable to predict the length of her detention.

The trial court found that C.W. had been admitted to the State Hospital seven times before, and determined that she "suffers from a mental disorder which substantially impairs her capacity to use self-control, judgment and discretion, and that there is a substantial likelihood of substantial harm to herself and others as demonstrated by past actions and threats." Concluding that treatment should continue "for an indefinite period," the trial court ordered on November 1, 1989, that C.W. "be hospitalized and treated by the North Dakota State Hospital for an indefinite period, or until further order of the Court."

After that, C.W. moved for relief from the indeterminateness of the commitment. In effect, C.W. challenged both NDCC 25-03.1-22 ("an order of continuing treatment ... may be for an unspecified period of time") and 25-03.1-31 (periodic institutional reviews and reports mandated for a patient in continuing treatment). C.W. argued that "a commitment for an indefinite period of time violates ... due process of the law as guaranteed by the State and Federal Constitutions and violates the open Court provisions of the North Dakota State Constitution."

The trial court denied C.W. relief, holding that the statutes afforded due process and also reasoning

[t]hat [C.W.'s] argument that [the statute] is not being complied with is premature and not ripe for review as to [C.W.] since the statute by its own terms, will not become operative until six months from the date of the November 1, 1989 continuing treatment order.... That [C.W.] has not shown that the statute in question has been applied unlawfully as to her, and is not entitled to any relief at this time.... That [C.W.] has not alleged that she is no longer a person requiring treatment, nor made any showing that she is not.

The trial court elaborated that "[t]he facility must do a periodic evaluation or ... the order terminates." C.W. appealed.

After an initial involuntary commitment not exceeding 90 days, NDCC 25-03.1-22 1 authorizes extension of the commitment for continuing treatment if necessary. Upon timely petition by the superintendent of the state hospital, "an order of continuing treatment ... for an unspecified period of time" is authorized if the patient continues to require treatment. Id. C.W.'s appeal challenged the constitutionality of this section when "viewed in conjunction with the rest of Chapter 25-03.1 ... especially ... 25-03.1-31, NDCC." 2 Invoking due process guarantees, C.W. urged that a commitment of unspecified duration was a significant deprivation of liberty and constitutionally impermissible. She argued that the term of a commitment for treatment must be definite, that a continuing commitment must be reviewed by the judiciary rather than mental health professionals, and that judicial review must be automatic, not patient initiated. C.W. insisted that "the only way the commitment statute can provide due process of the law ... is to provide for definite terms of commitment with automatic judicial review upon completion of that commitment term."

The State Hospital responded to C.W.'s appeal in several ways. First, the Hospital contended that an order denying a motion for relief from a continuing treatment order was not appealable under NDCC 25-03.1-29 which authorizes an expedited appeal from certain mental health orders. 3 The Hospital argued that the scope of a mental health appeal was "limited to a review of the procedures, findings, and conclusions of the lower court" under that statute. Since C.W. did not challenge the court's findings and conclusions, the Hospital hypothesized that C.W. had no right to appeal. We disagree. An order denying a motion to vacate a final judgment is an appealable order under NDCC 28-27-02(2). B.R.T. v. Executive Director of Social Service Board, 391 N.W.2d 594 (N.D.1986). While C.W. was probably not entitled to an expedited appeal, she was entitled to appeal.

The Hospital made an energetic argument that adequate due process protections are afforded by the statutory scheme, summarized here. Although "for an indefinite period," a continuing treatment order is effectively limited in duration to the six month and one year intervals in which it must be institutionally reviewed and justified. NDCC 25-03.1-31. The Hospital's superintendent must discharge a patient who no longer requires treatment. NDCC 25-03.1-30(2). 4 The results of each institutional review must be filed with the court. NDCC 25-03.1-31. Notice of the results must be given to the patient, to her attorney, and to her nearest relative or guardian; there is an opportunity for a hearing; the patient has a right to an independent expert examination; and the burden of proof at a hearing remains on the institution. Id. A patient retains all civil rights including the right to appeal and the right to habeas corpus. NDCC 25-03.1-29 5 and 25-03.1-40(11). 6 In the Hospital's view, this array of available procedures and rights satisfies the process due considering "the reality of the long term nature ... and the uncertainty as to length of treatment" of many mental illnesses. Cf Zinermon v. Burch, --- U.S. ----, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990) (Mental patient had a Sec. 1983 claim for violation of procedural due process for "voluntary" commitment when he was incompetent to give informed consent.); Washington v. Harper, --- U.S. ----, ----, 110 S.Ct. 1028, 1042, 108 L.Ed.2d 178 (1990) (Mentally ill inmate afforded procedural due process "by allowing the decision to medicate to be made by medical professionals rather than a judge."); Beckler v. North Dakota Workers Compensation Bureau, 418 N.W.2d 770, 773 (N.D.1988). ("Due process does not insist upon inflexible procedures uniformly applicable to every imaginable situation.").

These different recipes for due process were brought to us on different platters. C.W. submitted that a discharge hearing is a "rare occurrence;" that the institutional review, report, and notice procedures are indifferently carried out; and that "[e]ven the simplest procedures may be too difficult for one committed to a mental institution to follow." On the other hand, the Hospital offered statistical data showing 3,691 admissions and 3,743 releases including 2,588 discharges, during its most recent fiscal year as tending to demonstrate adherence to mandated review and discharge duties. Individually, C.W.'s history of repeated hospitalizations included seven prior admissions and releases. These contrasting settings for the efficacy of existing review procedures, which will soon apply to C.W., lead us to conclude that any constitutional problems which may exist are not ready for decision.

The Hospital's third argument was that "[n]one of the possible harms or prejudice raised by C.W. has in fact occurred to her and are merely speculation." The Hospital urged that C.W.'s challenges to the statutory scheme were therefore "premature and not ripe for...

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