In re Doe

• Decision Date: 30 September 2003
• Docket Number: No. 23806., No. 23534
• Citation: 102 Haw. 528,78 P.3d 341
• Parties: In the Matter of Jane DOE, Respondent/Subject-Appellant.
• Court: Hawaii Court of Appeals

78 P.3d 341

102 Haw. 528

In the Matter of Jane DOE, Respondent/Subject-Appellant.

Nos. 23534, 23806.

Intermediate Court of Appeals of Hawai'i.

September 30, 2003.

Cindy A.L. Goodness, Deputy Public Defender, State of Hawai`i for respondent/subject-appellant.

Julio C. Herrera, Deputy Attorney General, State of Hawai'i for petitioner-appellee Department of Health (Andrea J. Armitage, Jay K. Goss, and Mary Anne Magnier, Deputy Attorneys General, State of Hawai'i on the briefs).

BURNS, C.J., and WATANABE, J.; and FOLEY, J., concurring separately.

Opinion of the Court by WATANABE, J.

In these consolidated appeals¹ Respondent/Subject Appellant Jane Doe (Doe) challenges two orders entered by the Family Court of the First Circuit (the family court), involuntarily committing her to the Hawai`i State Hospital (HSH) for successive ninety-day periods, upon petitions filed by Petitioner Appellee Department of Health, State of Hawai'i (the State) pursuant to Hawaii Revised Statutes (HRS) chapter 334 (1993).² Specifically, Doe appeals from the: (1) Findings and Order of Involuntary Hospitalization entered by Judge Marilyn Carlsmith (Judge Carlsmith) on June 19, 2000(Order 1); and (2) Findings and Order of Involuntary Hospitalization entered by Judge James R. Aiona, Jr. (Judge Aiona) on October 3, 2000 (Order 2).

There is no question that Doe suffers from a chronic and serious mental illness. She has been diagnosed as suffering from schizophrenia, paranoid type, as well as schizoaffective disorder, bipolar type, and has a history of: paranoid, persecutory delusions; responding to internal stimuli, as manifested by her talking to herself, gesturing, and engaging in purposeless behaviors; disturbed sleep; psychomotor agitation; disorganized thinking; rambling speech; lack of insight; and poor judgment. While she apparently has not been physically violent in the past, she often directs loud racist, inflammatory remarks at others, often in their faces, prompting concerns that she will provoke physical retaliation against her. During previous stays in mental institutions and halfway houses, Doe's words have led to angry confrontations with other patients and staff.

Although medication has been shown to help Doe, she refuses to take any voluntarily, partly due to her paranoia and mistrust of others. Doe's paranoia has also led to a history of poor self-care and neglect, with Doe often not eating out of fear that she would be "poisoned." Due to Doe's increasingly paranoid behavior, Doe's parents and brother, who have been appointed as the co-guardians of Doe's person (Co-guardians), are no longer able to care for Doe in their home. They have therefore supported the State's successive petitions to hospitalize Doe and involuntarily administer to her the medications they believe she needs to get better.

Pursuant to HRS chapter 334, the statutory criteria for involuntary hospitalization are as follows:

Involuntary hospitalization criteria. A person may be committed to a psychiatric facility for involuntary hospitalization, if the court finds:

(1) That the person is mentally ill or suffering from substance abuse;

(2) That the person is imminently dangerous to self or others, is gravely disabled or is obviously ill; and

(3) That the person is in need of care or treatment, or both, and there is no suitable alternative available through existing facilities and programs which would be less restrictive than hospitalization.

HRS § 334-60.2 (1993) (emphasis added). The first criterion must be established by the "beyond a reasonable doubt" standard, and the second and third criteria must be established by the "clear and convincing evidence" standard. HRS § 334-60.5(i) (Supp.2002).³ In its petitions for Doe's involuntary hospitalization that underlie these appeals, the State claimed that Doe:

is a person who is mentally ill or suffering from substance abuse, and is imminently and substantially dangerous to self or others and is in need of care or treatment, or both, and that there is no suitable alternative available through existing facilities and programs which would be less restrictive than hospitalization, thereby being within the purview of chapter 334, Hawaii Revised Statutes, as amended, and as defined by law.

(Emphasis added.) In other words, as to the second statutory criterion, the State focused on Doe's "imminent dangerousness to self or others" and not on whether Doe was "gravely disabled or ... obviously ill[.]"⁴

On appeal, Doe does not challenge the family court's findings that she met the first and third criteria for involuntary hospitalization. Doe argues that she was unconstitutionally hospitalized because there was insufficient evidence that she was imminently dangerous to herself or others. Doe asserts that the family court's orders were based on mere "antisocial behavior," i.e., her aggressive racist remarks, and such remarks constituted protected free speech for which she could not be involuntarily hospitalized.

We reverse Orders 1 and 2.

BACKGROUND

Doe is a magna cum laude graduate from Chaminade University who has grappled with mental illness since her teen years. When she was thirteen years old, she was treated for depression. In December 1994, Doe was admitted to Queen's Medical Center (Queen's) after exhibiting bizarre behavior, including placing fish from the refrigerator into a mailbox. In August 1996, Doe was again hospitalized at Queen's for psychiatric treatment. In 1996 and 1997, Doe received follow-up outpatient treatment at the Kalihi-Palama Community Mental Health Center; however, she refused to take any medication and her paranoid behavior became progressively worse. She refused, for example, to eat food prepared at home because she thought the food was being poisoned.

On November 14, 1998, Doe was arrested and charged with Criminal Trespass in the First Degree after she loudly and abusively antagonized her parents and refused to leave their home when requested to do so. Because she bit the arresting police officer and resisted arrest, Doe was also charged with assault of a police officer and resisting arrest. Two days later, Doe was sent to the Women's Correctional Facility, where, upon psychiatric evaluation, she was determined to be unfit to proceed to trial.

On January 6, 1999, Doe was admitted to HSH for treatment and care. However, she refused treatment and never gained fitness. Consequently, the criminal charges against her were dropped on April 29, 1999.

PROCEDURAL HISTORY

A. Family Court Proceeding FC-M No. 99-0434

On July 16, 1999 in FC-M No. 99-0434, the State filed a Petition for Involuntary Hospitalization of Doe in the family court (Petition 1). Attached to Petition 1 was a Certificate of Physician signed by HSH staff psychiatrist Dr. Thomas E. Henry (Dr. Henry), who certified that he had examined Doe on July 15, 1999, at 9:00 a.m. and had reason to believe that she was:

mentally ill ... [a]s manifested by ... paranoid, persecutory delusions. Appears to be responding to internal stimuli. Sleep disturbance. Psychomotor agitation. Disorganized thinking. Rambling speech. No insight. Poor judgement [sic][;]

....

imminently and substantially dangerous to... self ... [and] ... other persons ... [a]s manifested by such acts, attempts or threats as the following: incites anger, assaultive behaviors in peers, pushed peer, makes racial slurs, intrusive, does not respect boundaries[;]

....

... in need of care and/or treatment, and there is no alternative available through existing facilities and programs which would be less restrictive than hospitalization;

... not capable of realizing and making a rational decision with respect to his/her need for treatment.

On July 22, 1999, the family court, Judge Lillian Ramirez-Uy presiding, appointed Jerry I. Wilson, Esquire as the guardian ad litem (the GAL) for Doe.⁵

On July 29, 1999, the family court, Judge Peter Fong (Judge Fong) presiding, entered Findings and Order of Involuntary Hospitalization that granted Petition 1 and ordered Doe to be retained at HSH for "care and/or treatment until placement in an alternative facility for a period not to exceed 90 days, unless sooner discharged, from ... the termination date of the current commitment on July 27, 1999."

On October 15, 1999, the State filed a Repetition for Involuntary Hospitalization "to continue [Doe's] hospitalization" (Petition 2). In a Certificate of Physician filed in support of the repetition on October 19, 1999, Dr. Henry certified that he had examined Doe on October 14, 1999, and had reason to believe that Doe was

mentally ill[,] ... [a]s manifested by ... paranoid, persecutory delusions. Responding to internal stimuli as manifested by talking to self, gesturing, purposeless behaviors. Psychomotor agitation. Disturbed sleep. Disorganized, tangential thought process. Rambling speech. No insight. Poor judgement [sic].

Dr. Henry also stated that Doe was "imminently and substantially dangerous" to herself,

[a]s manifested by such acts, attempts or threats as the following: Incites others to anger & assaultive behaviors towards self. Pushed peer. Racial slurs. Intrusive, does not respect boundaries.

Finally, Dr. Henry certified that Doe was "in need of care and/or treatment, and there [was] no alternative available through existing facilities and programs which would be less restrictive than hospitalization" and that Doe was "not capable of realizing and making a rational decision with respect to ... her need for treatment."

On October 15, 1999, the State also filed a Motion for Order Authorizing the Involuntary Administration of Medication, seeking authority to involuntarily administer medications, including psychiatric medications, and involuntarily administer laboratory studies, as clinically necessary, to Doe. A proposed treatment plan for Doe prepared by Dr. Henry was attached to the motion.

In describing Doe's clinical status that prompted the proposed...