In Re the Mental Commitment of M.P.

500 N.E.2d 216, 1986 Ind. App. LEXIS 3312

• Court: Indiana Court of Appeals
• Decided: November 18, 1986
• Docket: 2-1185A355
• Status: Published

Opinions

CONOVER, Presiding Judge

(Sitting by Designation).

M.P. appeals the Marion Municipal Court, Room No. 3's order continuing his regular commitment to Central State Hospital and allowing the State to forcibly medicate him with antipsychotic medications.

We affirm.

ISSUES

This appeal presents the following issues:

1. whether the trial court's finding M.P. is mentally ill and gravely disabled is supported by clear and convincing evidence, and

2. whether the court erred by determining M.P. could be forcibly medicated with antipsychotic medications having the possibility of serious side effects because the evidence did not show M.P. was immediately dangerous to himself and others.

FACTS

M.P. is a 28-year-old male with a history of hospitalizations and treatment for mental iliness for more than two years. Currently, he is involuntarily confined to Central State Hospital. He was admitted in March, 1984, then put on out-patient status, but has been an in-patient continuously since August, 1984. He has never been adjudicated an incompetent.

In the recent past, M.P. has had severe delusions and has attempted suicide. Currently, his psychiatrist at Central State Hospital, Dr. Stoner, diagnoses MP.'s problem as chronic undifferentiated schizophrenia: "Right now it is not as bad as it could be; but it's not perfect either, not well enough to leave the hospital." M.P. is not currently dangerous. He is unable to meet his basic needs, has no income, is not employable, and has no suitable plans in the event of his release. If released, he plans to go to the Salvation Army because he has no other place to stay, and to live on food stamps until he can get a job.

On one occasion while off his medication, M.P. grabbed another patient by the throat. Another time he was found with a butter knife in his possession.

Prior to his annual review hearing, M.P. began to refuse his medications after consulting a lawyer. Afterwards, his mental condition began to deteriorate. When he did cooperate and take his medicine, his condition improved, and he was able to think more clearly. If he would cooperate and continue taking his medication he could eventually leave the hospital as has been the case in the past, his psychiatrist believes.

Further facts as necessary appear below. DISCUSSION AND DECISION

M.P. first attempts to challenge both the sufficiency of the evidence to sustain the trial court's findings of fact and the sufficiency of the findings to sustain the judgment, then the admissibility of his relatives' testimony concerning his aberrant behavior prior to his hospitalization. These issues are waived.¹

1. "Clear and Convincing" Evidence Standard.

A. Standard in Trial Courts.

To satisfy federal due process requirements the State must prove the defendant's mental condition requires him to be hospitalized and treated for the protection of himself and the public by "clear and convincing" evidence. Addington v. Texas (1979), 441 U.S. 418, 432-433, 99 S.Ct. 1804, , 60 L.Ed.2d 323. However, the Addington court left it to the states to determine whether a greater evidentiary burden should be imposed upon the state, acting in its capacity as parens patrice, before enforced hospitalization could be ordered.

Our Supreme Court recently discussed the clear and convincing evidence standard. In Orkin Exterminating Co. v. Traina (1986), Ind., 486 N.E.2d 1019, a punitive damages case, Justice Prentice, speaking for a unanimous court [Shepard, J. not participating] said

In Travelers Indemnity Co. v. Armstrong, [ (1982) Ind., 442 N.E.2d 349] supra, we established the "clear and convincing evidence" standard ... a standard which is but minutely below the "reasonable doubt" standard, because such actions are more akin to criminal actions than to civil suits,.... The rule is nothing more than the rule applicable in criminal trials resting entirely upon circumstantial evidence, i.e. the evidence must exclude every reasonable hypothesis of innocence. - (Emphasis supplied).

Traina, 486 N.E.2d 1022, 1023. Accord, Manlove v. State (1968), 250 Ind. 70, 77, 232 N.E.2d 874, 878. A conviction may be based solely on cireumstantial evidence. Correll v. State (1985), Ind., 486 N.E.2d 497, 500; Watkins v. State (1984), Ind., 468 N.E.2d 1049, 1052. Thus, trial courts must apply "the exclusion of every reasonable hypothesis of innocence" test to the evidence before them in favor of the defendant when considering whether an allegedly mentally ill person may be hospitalized against his will under the rule in Traina.

B. Standard of Review on Appeal.

On appeal, the reviewing court examines the record to determine whether there was substantial evidence to support the trial court's findings on each of the issuable facts or elements the State must prove in such cases beyond a reasonable doubt. Marshall v. State (1982), Ind., 438 N.E.2d 986, 987. When sufficiency of the evidence is at issue, we look only to the evidence most favorable to the State and all reasonable inferences to be drawn therefrom. If substantial evidence establishes each necessary element of the matter beyond a reasonable doubt, the trial court's verdict or judgment will not be disturbed. The reviewing court will not weigh conflicting evidence nor judge the credibility of witnesses. Loyd v. State (1980), 272 Ind. 404, 398 N.E.2d 1260, 1264. Accord, Smith v. State (1984), Ind., 468 N.E.2d 512 515; Marshall, 438 N.E.2d at 987. Finally, the Traina court instructs

Whatever standard of proof is required at the trial level, if it can be said that either of two conclusions can be reasonably drawn from the evidence, it is immaterial, upon appeal, that one of such conclusions appears to be more likely than the other, and we are bound by the finding of the trier of fact. However, when ... the conclusion reached by the fact finder simply cannot be reasonably arrived at under the evidence, that is to say that no reasonable person could draw such conclusion from the evidence, then the judgment resting thereon is contrary to law and cannot stand. (citing cases) (Emphasis supplied).

Traina, 486 N.E.2d at 1022.

The trial court here satisfied Adding-ton's due process requirements. Its Finding of Fact No. 2 says

2) The State of Indiana had the burden of proving, by clear and convincing evidence, that Respondent suffered from a mental illness which resulted in either the respondent's grave disability or dangerousness. (Emphasis supplied).

Our duty, then, is to review

(a) the evidence to determine whether there is substantial evidence supporting each finding of fact, then

(b) the findings as a whole to determine whether they support the conclusions reached by the trial court namely,

(1) M.P.'s hospitalization should be continued, and

(2) because M.P. currently cannot make rational choices as to his course of treatment, medication to correct his condition may be forced upon him by hospital personnel.

If these were conclusions a reasonable person could draw from those findings, we will affirm. If no reasonable person could draw such conclusions, the judgment is contrary to law and cannot stand. Traina, 486 N.E.2d at 1022.

2. Continued Hospitalization.

A. Hearsay in Business Records.

M.P. argues it was error to admit M.P.'s hospital admission records because they contained numerous hearsay comments by his relatives who were under no business duty to make them for the record. Because they contain such hearsay, these records are inadmissible, M.P. opines, citing Burger Man, Inc. v. Jordan Paper Products, Inc. (1976), 170 Ind.App. 295, 352 N.E.2d 821, in support of that proposition. We disagree.

First, hospital records containing statements reasonably pertinent for proper diagnosis are admissible. Breeding v. Dodson Trailer Repair, Inc. (1984), Mo.Sup., 679 S.W.2d 281, 284-285. Dr. Stoner used these records for diagnostic purposes.

Next, Indiana has rejected the hearsay argument as to expert witnesses. In this state, an expert witness can draw upon all sources of information coming to his knowledge or through the results of his investigation in order for him to formulate an opinion. The hearsay an expert considers must be of a type normally found reliable and customarily relied upon by him in the practice of his profession. Kranda v. Houser-Norborg Medical Corp. (1981), Ind.App., 419 N.E.2d 1024, 1034, reh. den'd. 424 N.E.2d 1064; appeal dismissed 459 U.S. 802, 103 S.Ct. 23. Accord, Breeding, 679 S.W.2d 284-285; Federal Rules of Evidence, Rule 803(4).

Finally, business records made in the regular course of business when properly identified are admissible even though they contain hearsay, as an exception to the hearsay rule. Burger Man, Inc., 352 N.E.2d at 830.

The court correctly continued M.P.'s hospitalization. Cf. IC 16-14-9.1-10(d).

We find no error here.

3. Forced Medication with Antipsychotic Drugs.

M.P. next argues the trial court erred by authorizing his enforced medication with antipsychotic drugs if he refuses to take them voluntarily. He claims a competent, involuntarily committed mental patient has a constitutional right to refuse medication, absent an emergency situation. The State in oral argument agrees such a constitutional right exists, but suggests the question of whether such a patient can be forcibly medicated against his will "appears to be a mixed question of constitutional law, statutory construction, and sufficiency of the evidence." Both parties indicate this question is one of first impression in this state, as indeed it is.

A. The Constitutional Right to Refuse Medication.

In recent years, this question has been the subject of much discussion. Cf. Anderson, Right to Refuse Antipsychotic Medication: A Proposal for Legislative Consideration, 17 Ind.L.Rev. 1035, 1036, (1984). The question to be answered in such cases is whether an involuntarily-committed patient has a right to refuse such medication; and if so, whether it is ever subservient to the State's duty to act as parens patriae² in his best interests.

1. The Patient's Right.

Two recent United States Supreme Court decisions are dispositive of the question of whether such a patient has a "liberty interest" of constitutional proportion to refuse to take antipsychotic medications. In Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982) the Supreme Court determined a mentally retarded person involuntarily committed to a state mental institution has a constitutionally protected "liberty interest" under the Due Process Clause of the Fourteenth Amendment to reasonably safe conditions of confinement, freedom from unreasonable bodily restraints, and such minimally adequate training as reasonably might be required by these interests. Youngberg, 457 U.S. at 315-316, 102 S.Ct. at 2458. In Mills v. Rogers, 457 U.S. 291, 102 S.Ct. 2442, 73 L.Ed.2d 16 (1982), decided the same day as Youngberg, the precise question here involved was before the Court. It assumed but did not decide the Constitution recognizes "a liberty interest in avoiding the unwanted administration of anti-psychotic drugs." Mills, 457 U.S. at 299, 102 S.Ct. at 2448. The Supreme Court remanded Mills to the First Circuit for its reconsideration of the case in light of the Massachusetts Supreme Court's decision in Guardianship of Roe (1981), 383 Mass. 415, 421 N.E.2d 40, because it believed Massachusetts in light of the Roe decision might recognize liberty interests in such cases "broader than those protected directly by the Constitution of the United States." Mills, 457 U.S. at 303, 102 S.Ct. at 2450. Reading Youngberg and Mills together, deeming it appropriate to do so in light of the Supreme Court's remand of Rennie v. Klein, 458 U.S. 1119, 102 S.Ct. 3506, 73 L.Ed.2d 1381 to the Third Circuit "for further consideration in light of Youngberg v. Romeo" (gee note 3, infra ), we hold in Indiana, involuntarily-committed mental patients have liberty interests protected by the Fourteenth Amendment of the United States Constitution in avoiding the unwanted administration of antipsy-chotic drugs.

Further, under Indiana law such patients are entitled to exercise their constitutional rights. IND. CODE 16-14-1.6-4 provides

(a) All persons receiving mental health services ..., are entitled to exercise their constitutional, statutory and civil rights except for those rights which have been denied or limited by an adjudication or finding of incompetency in a guardianship or other civil proceeding.

M.P. has never been judicially declared incompetent. Thus, he has a constitutional right to refuse to take antipsychotic drugs which may have serious side effects upon him. However, such right is not absolute either under our statutes or the federal constitution.

No right, constitutional, fundamental or otherwise, is absolute and unlimited. State v. Levitt (1965), 246 Ind. 275, 203 N.E.2d 821, 824. Constitutionally guaranteed rights can be restricted if the restriction furthers a substantial governmental interest. Avery v. Faulkner (1984), Ind.App., 471 N.E.2d 1226, 1228; Matter of Joseph (1981), Ind.App., 416 N.E.2d 857, 861.

- While agreeing in substance with this proposition, M.P. argues the State may administer antipsychotic drugs only when "without medication the patient will harm himself or others," citing Rennie v. Klein (1983, 3rd Cir.) 720 F.2d 266, in support of that argument.³

When the patient's constitutional right to refuse medication and the State's parens patriae duty to act in the patient's best interests come into direct conflict, as in this case, the fundamental question is which shall prevail, the right or the duty, albeit the potential for development of serious side effects?

Our statutes leave the resolution of that issue to the courts. IC 16-14-1.6-7 provides in involuntary treatment cases

All patients ... are entitled to be informed of the nature of the treatment ... proposed, the known effects of receiving and of not receiving such treatment ..., and alternative treatments ..., if any.... An involuntary patient ... who wishes to refuse to submit to treatment ... is entitled to petition the committing court or hearing officer for consideration of the treatment or program. In the absence of such a petition, the service provider may proceed with the proposed treatment ...

Accordingly, in this case M.P. petitioned the lower court for review of the State's proposed treatment. This judicial review process satisfies the first prong of our federal constitution's Fourteenth Amendment Due Process requirements in such cases because it provides for judicial hearing by an independent decision maker. Such hearing, coupled with our procedural rules providing the opportunity for written findings upon the evidence presented, and appellate review of a court's judgment by this one fully meet federal due process requirements. Cf. Ind. Rules of Procedure, Trial Rules 1 and 52; and Ind. Rules of Procedure, Appellate Rule 4(B). Vitek v. Jones, 445 U.S. 480, 495-496, 100 S.Ct. 1254, 1265, 63 L.Ed.2d 552 (1980); Morrissey v. Brewer, 408 U.S. 471, 487-488, 92 S.Ct. 2593, 2603, 33 L.Ed.2d 484 (1972). However, that is not the end of the matter. Substantive due process also requires the exercise of "professional judgment" before such patient's liberty interest may be overborne.

The Youngberg "professional judgment" rule, followed in Rennie, was stated thusly by the Supreme Court:

In determining whether a substantive right protected by the Due Process Clause has been violated, it is necessary to balance "the liberty of the individual" and "the demands of an organized society." (citing cases) In seeking this balance in other cases, the Court has weighed the individual's interest in liberty against the State's asserted reasons for restraining individual liberty. (citing cases) * * * [Wle upheld those restrictions on liberty that were reasonably related to legitimate government objectives and not tantamount to punishment. * * We think the standard articulated by Chief Judge Seitz affords the necessary guidance and reflects the proper balance between the legitimate interests of the State and the rights of the involuntarily committed * * *. He would have held that "the Constitution only requires that the courts make certain that professional judgment in fact was exercised. It is not appropriate for the courts to specify which of several professionally acceptable choices should have been made." 644 F.2d [147], at 178 [3rd Cir.1980].

Youngberg, 457 U.S. at 320-321, 102 S.Ct. at 2460-2461.

Finally, federal due process also requires "clear and convincing" evidence of the necessity to administer antipsychotic drugs before the trial court is warranted in overriding the patient's constitutional right to refuse such drugs. Addington, 441 U.S. at 432-433, 99 S.Ct. at 1812-1813. Our final consideration on review, then, is whether substantial evidence of probative value sufficient to exclude every reasonable hypothesis such drugs should not be administered was before the trial court so as to warrant the entry of such judgment. If no reasonable person could draw the conclusion reached by the court below upon the evidence before it, we must reverse because such judgment "is contrary to law and cannot stand." Traina, 486 N.E.2d at 1022.

2. Evidence Sufficient to Warrant Forced Medication

The court below found

a) M.P. cannot make rational choices regarding his own care. (Finding No. 20),

b) Without medication, Dr. Stoner believes M.P.'s condition will stay the same or deteriorate; with medication, he would be more able to cooperate in therapy. Such cooperation would lead to his discharge sooner. (Finding No. 5). It is Dr. Stoner's opinion the benefits from the medication outweigh the disadvantages to him. M.P. argues because the court's findings do not demonstrate M.P. is not currently dangerous to himself and others nor likely to become so, the evidence and findings do not support the court's judgment forced medication is warranted in this case. We disagree.

In addition to the trial court's findings regarding Dr. Stoner's testimony, it found

a) while on medication at LaRue Carter hospital he did better than he had before his admission there (Finding No. 3),

b) after his release from LaRue Carter in 1983 on medication, while off his medication he got worse, becoming wild, religiously fanatic, hallucinated and was delusional, (Finding No. 3),

¢) he believed at that time there were "devils in his body," he carried a knife, cut himself with a razor blade, and considered the medical staff to be devils. He needed to be restrained by the staff, (Finding No. 4).

M.P.'s history of improvement while on medication, and Dr. Stoner's opinion the benefits of medication outweigh the disadvantages to him constitute substantial evidence the drugs should be administered. The side effects of shaking resulting from these drugs presumably will be countered with antiparkinsonian medications. |

The trial court's conclusion also satisfies federal due process because

a) the trial court deferred to the judgment of a qualified professional, Dr. Stoner, and

b) since Dr. Stoner is a qualified professional, his opinion is entitled to a presumption of correctness.

Youngberg, 457 U.S. at 325, 102 S.Ct. at 2462. There is substantial evidence, both direct and circumstantial, of probative value on each material element of the matter at issue. Further, we believe the trial court reached the conclusion any reasonable person would reach under the same or similar cireumstances. Thus, the trial court's judgment is not contrary to law.

Affirmed.

BUCHANAN, C.J., concurs. SULLIVAN, J., dissents with separate opinion.

1 . M.P. attempts to challenge the sufficiency of the trial court's findings numbered 3, 4, 5, 10, and 17 through 20, to support the judgment. However, he in fact argues the insufficiency of the testimony of certain witnesses to support the judgment. Next, he alleges insufficiency of the evidence to support certain of the trial court's findings. These alleged errors are waived, however, because M.P. does not cite us to the pages in the record where the questioned testimony appears. Further he does not cite cogent authority supporting his insufficiency claims. Failure to set out such citations in an appellant's brief waives the issues attempted to be raised. Gibralter Mutual Ins. Co. v. Hoosier Ins. Co. (1985), Ind.App., 486 N.E.2d 548, 554; Terre Haute First National Bank v. Stewart (1983), Ind.App., 455 N.E.2d 362, 267. We will not search the record to reverse the trial judge. Stewart, 455 N.E.2d at 367; Jones v. City of Logansport (1982), Ind.App., 439 N.E.2d 666, 668.

M.P. made an attempt to correct this omission by several citations to appropriate testimony in his reply brief. This repair work is to no avail, however. Attempts to correct deficiencies in an appellant's reply or rehearing brief come too late. The appellant will not be permitted to reopen his appeal in this fashion. Board of Commissioners of St. Joseph County v. Tinkham (1986), 491 N.E.2d 578, 580; Jones, 439 N.E.2d at 668.

Next, M.P. attempts to challenge the admissibility of the testimony of M.P.'s relatives as to his aberrant behavior prior to his hospitalization. Again, no citations to the specific pages of the record where this testimony may be found appear in his brief, nor is cogent authority cited to support his contentions. For these reasons, these issues are also waived. Gilbralter, Stewart, and Jones, supra.

2 . Defined as

Father of his country; parent of the country.... In the United States, the state, as a sovereign-referring to the sovereign power of guardianship over persons under disability; In re Turner, 94 Kan. 115, 145 P. 871, 872, ...; such as minors, and insane and incompetent persons; McIntosh v. Dill, 86 Okl. 1, 205 P. 917, 925 [ (1922) ].

Black's Law Dictionary, Revised Fourth Edition, West Publishing Co.

3 . Because the Rennie case involves the precise question now before us, a short discussion of its tortured history is appropriate. The case was the Third Circuit's second consideration of that question. | In its first decision, that court sitting en bane as a 10 judge court, determined involuntarily committed mental patients have a constitutional right to refuse antipsychotic drugs. Rennie v. Klein (1981, 3rd Cir.) 653 F.2d 836. It was then appealed to the United States Supreme Court. After that court decided Youngberg v. Romeo (1982) 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28, also a Third Circuit case, the Supreme Court remanded Rennie "specifically for reconsideration in light of the Supreme Court's opinion in Youngberg." Rennie, 720 F.2d at 268. It is clear from that instruction, the Supreme Court intended Yourngberg's "professional judgment" standard to apply to antipsychotic drug cases.

M.P.'s confidence in Rennie as authority for his contention is misplaced. "Whether the patient constitutes a danger to himself or others" is a New Jersey state standard, not the federal one announced in Rennie, supra.