Steinkruger v. Miller, No. 21105.

• Court: Supreme Court of South Dakota
• Writing for the Court: KONENKAMP, Justice
• Citation: 2000 SD 83,612 N.W.2d 591
• Docket Number: No. 21105.
• Decision Date: 21 June 2000
• Parties: Roger STEINKRUGER, Chief Executive Officer, South Dakota Human Services Center, Appellee, v. DeWayne MILLER, Appellant.

612 N.W.2d 591
2000 SD 83

Roger STEINKRUGER, Chief Executive Officer, South Dakota Human Services Center, Appellee,
v.
DeWayne MILLER, Appellant

No. 21105.

Supreme Court of South Dakota.

Considered on Briefs February 14, 2000.

Decided June 21, 2000.

612 N.W.2d 593

Mark Barnett, Attorney General, Lynne A. Valenti, Special Assistant Attorney General, Department of Human Services, Pierre, South Dakota, Attorneys for appellee

David M. Hosmer, Yankton, South Dakota, Kari L. Nordstrom, South Dakota Advocacy Services, Pierre, South Dakota, Attorneys for appellant.

KONENKAMP, Justice

[¶ 1.] Are South Dakota's forced medication statutes unconstitutional because they fail to require that mental patients be given the least restrictive treatment alternative? The circuit court found that there was no less intrusive alternative available in this case. We conclude that our statutes comport with constitutional constraints by incorporating the least restrictive alternative requirement for incompetent, involuntarily committed patients and affirm the circuit court's order for forced medication.

A.

[¶ 2.] DeWayne Miller, age fifty-seven, currently resides at the South Dakota Human Services Center as an involuntary patient. He first arrived there in 1979 and returned involuntarily several times. His mental illness has been variously diagnosed as severe schizoaffective disorder, bipolar type, and schizophrenia, paranoid type, continuous, with prominent negative symptoms. Both are classified as psychotic disorders under the DSM-IV, published by the American Psychiatric Association. Miller holds delusions at times that he can read minds, that he is pregnant, that all medicines are poisons. Occasionally, he admits to auditory hallucinations, and his behavior tends to confirm these. He also suffers from chronic obstructive pulmonary disease, diabetes, high blood pressure, renal stenosis, and severe sleep apnea.

[¶ 3.] Dr. Kahn, Miller's treating physician and the medical director at Human Services Center, classifies Miller's chronic and severe mental illness as a danger to himself because while in a delusional state he cannot meet his basic needs for food, clothing, and shelter on his own. Miller's mental health treatment plan includes psychotropic medication, psychotherapy, and participation in life skills and recreation therapy groups. Psychotropics are "[d]rugs with an effect on psychic function, behavior, or experience...." Robert Jean Campbell, M.D., Psychiatric Dictionary 523 (5th ed 1981). Because Miller's mental disorder impairs his judgment and decision-making ability, he denies his illness and refuses both his medicinal and therapeutic regimen. Without psychotropic medication, Dr. Kahn believes, Miller's prognosis remains extremely poor and his current functioning level will decline. Miller's prescribed medication may cause undesirable side effects, such as tiredness and dry mouth, but the drugs can be given in a way to minimize discomfort. Based on his psychiatric and medical opinion, Dr. Kahn concludes that psychotropic medication is the least restrictive treatment available for Miller's condition, and any side effects would be "substantially outweighed" by the expected benefits.

[¶ 4.] Miller perceives no need for medication. One of his delusions is that smoking will cure his pulmonary disease. He denies having any ailments, physical or

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mental, and attributes his chronic problems to "stress." When his doctor reviews his proposed treatment with him, including the benefits and adverse effects of the psychotropic medication, Miller consistently refuses consent. According to his treating doctor, however, and as later found by the circuit court, "administration of psychotropic medication is essential and necessary in a meaningful and successful treatment plan [and] although other treatment possibilities exist such as electroconvulsive treatment, psychotropic medication is the treatment of choice considering Mr. Miller's mental and physical conditions." An independent mental status evaluation, requested by Miller's counsel, corroborates these findings and recommendations

B.

[¶ 5.] In South Dakota, except in emergencies, involuntarily committed adults may refuse any psychotropic drugs. SDCL 27A-12-3.12; Rabenberg v. Rigney, 1999 SD 71, ¶ 12, 597 N.W.2d 424, 426. As a matter of law, these patients are deemed competent to select or reject this medication notwithstanding their involuntary commitment. SDCL 27A-12-1.2. If a patient refuses psychotropic drugs, however, a court may order the medication if it finds by clear and convincing evidence that the patient is incapable of consenting because the patient's "judgment is so affected by mental illness that the [patient] lacks the capacity to make a competent, voluntary, and knowing decision" regarding medication. SDCL 27A-12-3.15. Psychotropic medication may be court ordered only if it is found to be "essential," "medically beneficial," and "necessary" because the patient (1) "presents a danger to himself or others;" (2) "cannot improve or his condition may deteriorate without the medication;" or (3) "may improve without the medication but only at a significantly slower rate." SDCL 27A-12-3.13, -3.15.¹ A court order for psychotropic drugs may last for no longer than one year and the necessity for treatment with the medication must be medically reviewed every thirty days. SDCL 27A-12-3.16.

[¶ 6.] For each patient, the Human Services Center must develop a "comprehensive individualized treatment program." SDCL 27A-12-3.6. Patients have the right to ongoing participation in the planning of services and treatment, including the right to a reasonable explanation of "[a]ny appropriate and available alternative treatments, services and types of providers of mental health services." SDCL 27A-12-3.6(6). Treatment must "be designed to achieve discharge at the earliest possible time and to maximize each person's development and acquisition of perceptual skills, social skills, self-direction, emotional stability, effective use of time, basic knowledge, vocational occupational skills and social and economic values relevant to the community in which he lives." SDCL 27A-12-3.6.

[¶ 7.] The Chief Executive Officer of the Human Services Center, Roger Steinkruger, petitioned the circuit court for an order to force medicate Miller based on his incompetence to make his own decision. With appointed counsel, Miller moved to dismiss the petition, arguing that South Dakota's forced medication statutes are unconstitutional. After a hearing in which Miller's treating psychiatrist testified, the circuit court denied the motion to dismiss and issued an order to force medicate. The court specifically found that "no less intrusive treatment is currently available" for Miller. Earlier, he had been offered an opportunity to participate in IMPACT (Individualized and Mobile Program of Assertive Community Treatment). He refused, and his medical condition deteriorated to the point that the program was no longer appropriate for him. IMPACT is designed for those with severe and persistent

612 N.W.2d 595

mental illness. It allows patients to live independently in the community with in-home treatment, rehabilitation, and support

C.

[¶ 8.] On appeal, Miller argues that the forced medication statutes "violate substantive due process," found in the Due Process Clause in Article VI, section 3 of the South Dakota Constitution and the Fourteenth Amendment to the United States Constitution, because there is no statutory requirement that treatment be the least restrictive alternative.² Constitutional interpretation is a question of law reviewable de novo. State v. Beck, 1996 SD 30, ¶ 6, 545 N.W.2d 811, 812 (citing Poppen v. Walker, 520 N.W.2d 238, 241 (S.D.1994)). Statutes are presumed constitutional: challengers bear the burden to prove beyond a reasonable doubt that a statute violates a constitutional provision. Kyllo v. Panzer, 535 N.W.2d 896, 898 (S.D. 1995) (citing Specht v. City of Sioux Falls, 526 N.W.2d 727, 729 (S.D.1995)). Ordinarily, we review the constitutionality of a statute only when it is necessary to resolve the specific matter before us, and then only to first decide if the statute can be reasonably construed to avoid an unconstitutional interpretation. City of Chamberlain v. R.E. Lien, 521 N.W.2d 130, 131 (S.D.1994). The circuit court ruled that the prescribed psychotropic medication was the least restrictive alternative for Miller. Challengers may not assert that a statute is unconstitutional in some unrelated aspect if it is constitutional as applied to them. State v. Hy Vee Food Stores, Inc., 533 N.W.2d 147, 150 (S.D.1995) (citations omitted). However, as the question is likely to arise again, we will review Miller's claim. Rabenberg, 1999 SD 71, ¶ 2 n. 2, 597 N.W.2d at 425 (importance of issue overrides mootness doctrine).

D.

[¶ 9.] We begin our constitutional analysis by first considering the rights created under our state forced medication statutes. As the United States Supreme Court explained, state law may serve as a source of a federal right to refuse medication independent of any right conferred in the Due Process Clause of the Fourteenth Amendment. Washington v. Harper, 494 U.S. 210, 221-22, 110 S.Ct. 1028, 1036, 108 L.Ed.2d 178, 198 (1990) (citations omitted). Our law explicitly grants involuntarily committed patients the right to refuse psychotropic medication. SDCL 27A-12-3.12. Only under exacting standards and by court order may patients be medicated against their will. SDCL 27A-12-3.13, -3.15. When a state enacts a right to refuse psychotropic medication and imposes strict conditions on when patients can be force medicated, the laws create a "justifiable expectation" that "the drugs will not be administered unless those conditions exist." Harper, 494 U.S. at 221, 110 S.Ct. at 1036, 108 L.Ed.2d at 198 (citations omitted). Thus a statutory right to...