In re C.A.J.

• Decision Date: 05 August 2009
• Docket Number: A136828.,060261311.
• Citation: 213 P.3d 1279,230 Or. App. 224
• Parties: In the Matter of C.A.J., Alleged to be a Mentally Ill Person. State of Oregon, Respondent, v. C.A.J., Appellant.
• Court: Oregon Court of Appeals

213 P.3d 1279

230 Or. App. 224

In the Matter of C.A.J., Alleged to be a Mentally Ill Person.

State of Oregon, Respondent, v. C.A.J., Appellant.

060261311.

A136828.

Court of Appeals of Oregon.

Argued and Submitted January 20, 2009.

Decided August 5, 2009.

Liza Langford, Portland, argued the cause and filed the brief for appellant.

Anna M. Joyce, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before EDMONDS, Presiding Judge, and SERCOMBE, Judge, and BARRON, Judge pro tempore.^*

BARRON, J. pro tempore.

Appellant, an alleged mentally ill person, appeals from an involuntary mental recommitment judgment. ORS 426.307. She contends (1) that the trial court erred in finding that the state proved by clear and convincing evidence that she was "[u]nable to provide for basic personal needs and is not receiving such care as is necessary for health or safety," ORS 426.005(1)(d)(B), and (2) that there was not clear and convincing evidence that she failed to take insulin because of her mental disorder rather than her poor eyesight. The state points out that the second argument was not preserved, citing State v. Maxwell, 164 Or.App. 171, 172, 988 P.2d 939 (1999), rev. den., 330 Or. 71, 994 P.2d 133 (2000) (failure to object to late discovery of an examiner's report was not preserved because an objection was not made at the hearing); however, we do not address that question here because, as discussed below, the record shows that appellant's mental disorder causes her to be unable to administer her medications properly. We review de novo, State v. O'Neill, 274 Or. 59, 61, 545 P.2d 97 (1976),¹ and affirm.

Appellant was initially committed to the Mental Health Division for up to 180 days in February 2006. A recommitment hearing was held on August 23, 2007. At the hearing, the state called appellant's treating psychiatrist and her social worker as witnesses. They were the only witnesses to testify. Appellant did make unsworn statements at the hearing in response to questions by the examiner, the court, and the state's and appellant's attorneys.

The psychiatrist testified that appellant has a diagnosis of schizoaffective disorder that causes delusions and beliefs that people want to harm her and cause her problems. She has had that diagnosis for several years. Schizoaffective disorder's symptoms include disorganized thinking, paranoid delusions, and hallucinations. Other symptoms are impatience, irritability, and pressured speech. Appellant's medical conditions include insulin-dependent diabetes; chronic renal failure, mild to moderate, but not needing dialysis; and congestive heart failure. In 2005, appellant had to have a toe amputated because she was not managing her diabetes.

The psychiatrist had just recently become appellant's new treating psychiatrist, but had reviewed her record and interviewed her. The social worker had known appellant since 2005, had worked with her in the past, had helped in planning for her during her current stay, had seen her over 20 times in the last month of her stay at the hospital, and was very familiar with her history. Their testimony indicated that, up until 2005, appellant lived in less structured settings but that, since then, appellant has had exacerbations and recurrences of her symptoms and has not lived independently in "a sustained, successful way."

The psychiatrist testified that appellant was "hospitalized in April [2007] when she was in the less structured situation because she was too agitated to be maintained." Appellant, who admits that she has schizophrenia, told the psychiatrist that, in April, her symptoms of schizophrenia became worse, she was hearing voices, and she was unable to stay where she had been staying. Appellant stated that, before she was committed, she was being guided down a hill by friends of the staff where she was staying and could not stop because of her amputated toe. She ran into a car, suffered two broken arms, and was placed in two different hospitals because of her broken arms before being placed in the hospital where she has been since April 2007.

At the hospital, appellant checks her blood sugar levels by sticking her finger and gives herself insulin shots, but she does so under supervision, and, when she fills the needle to give herself a shot, the nurses have to adjust the amount of insulin when appellant does not have the correct amount. The psychiatrist testified that appellant does not recognize the need for supervision and that he was concerned about appellant's ability to check her blood sugar levels without it. Appellant interjected during the testimony of the psychiatrist that her blood sugar levels must be checked four times a day. Later in the hearing, appellant stated she has trouble with the morning check because her eyes "don't wake up in the morning."

The psychiatrist testified that, if appellant does not manage her blood sugar levels, they could become either too high or too low. If appellant does not take the correct amount of insulin, causing her blood sugar level to be too low, appellant could become confused, could pass out, and could have a brain injury. If appellant's blood sugar level becomes too high, appellant would become confused after a few days and therefore not take her insulin, and, if it becomes very high, she could become comatose. If appellant was partially compliant with taking her insulin, she would still become disoriented, and there would be concern about her taking any of her medications. Further, the psychiatrist testified that, as her blood sugar levels rise, appellant would be "less and less able to think clearly enough to manage her illness"; even if the levels are not so high as to cause confusion, "that's associated with intermediate and long-term problems like vascular disease and losing toes, kidney disease," and appellant already has "mild moderate kidney disease probably related to her diabetes." Although the psychiatrist testified that it is hard to predict within what period the failure to take insulin would become life threatening, he did not believe that appellant could handle her medical problems without supervision.

The psychiatrist also testified that appellant's potassium level was high possibly because of a diuretic medication, and that appellant is also at risk for having high levels because of her renal disease. Other doctors at the hospital started appellant on a new medication on the day of the hearing to correct the potassium level, but it was still high, although not dangerously high. The psychiatrist testified that a high potassium level can be immediately life threatening and that the new medication was one that appellant did not want to take because she believed it would cause severe constipation. The psychiatrist testified that, if appellant did not take the medication, "then we'll have trouble getting her potassium down into a safe range." If appellant left the hospital on the day of the hearing without addressing the high potassium level, the condition "would be serious and over the course of three or four days, it could become life threatening."

The social worker testified that, over the last two months of appellant's stay at the hospital, appellant was decompensating in that she was either having more confusion or more difficulty in managing information. Further, appellant had periods when she did not eat lunch, became dizzy during group sessions, and had "an increase in the sort of an inability to manage all parts of—of that kind of basic need." At times appellant had to ask questions of the social worker because "she wasn't able to find her ward."

The social worker testified that she had sent out referrals seeking housing for appellant, but that there were no openings in structured settings and there was no other resource with whom appellant could stay. The psychiatrist testified that appellant's community providers believed that she could be safely managed only in a structured setting, and he believed that appellant's mental illness affected "her ability to stay in various housing situations" and "her ability to care for herself." He testified that, if she is not supervised, she would be kicked out of independent living because she would become disorganized and not compliant "with medicines and her medical condition."

Appellant stated that she has a daughter, but the daughter has been against her since 2005. She also stated that her ex-husband said that she could stay with him for one night if she was released, but that she would then have to try to find a place to stay. She also stated that her ex-husband wanted her to stay where she was. Appellant stated that she guessed she lived on the streets after leaving a housing situation before her commitment in April. Appellant further stated that she was not on the Oregon Health Plan, that she did not know how long it would take to get on the plan, and that, if released, she would have "to get situated with a doctor someplace, but had no doctor."

The examiner, based on the testimony of the psychiatrist and social worker, told appellant, "you haven't done real well previously in even structured group homes and structured environments." He stated that appellant would be in immediate danger from not caring for herself because she would be overwhelmed by trying to find a place to live and caring for herself. He also indicated that appellant's mental disorder was evidenced at the hearing with "paranoid ideation," "pressured speech," and "grandiosity in thinking [appellant] could manage on [her] own." Also, "very consistent with schizoaffective disorder is often a lack of judgment and insight into the things that you need to take care of yourself," which the examiner stated was consistent with appellant's presentation at the hearing.

The court determined that the witnesses,² the psychiatrist and social...