MEMORANDUM DECISION Jun 02 2015, 9:05 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Amy P. Payne James L. Whitlatch Bloomington, Indiana Kathryn DeWeese Bunger & Robertson Bloomington, Indiana
IN THE COURT OF APPEALS OF INDIANA
M.D., June 2, 2015
Appellant-Respondent, Court of Appeals Case No. 53A05-1411-MH-515 v. Appeal from the Monroe Circuit Court.
Indiana University Health The Honorable Stephen R. Galvin, Judge. Bloomington Hospital, Cause No. 53C07-1409-MH-309 Appellee-Petitioner.
Riley, Judge
Court of Appeals of Indiana | Memorandum Decision | 53A05-1411-MH-515 | June 2, 2015 Page 1 of 15 STATEMENT OF THE CASE
[1] Appellant-Respondent, M.D., appeals the trial court’s order of forced
medication following a regular involuntary commitment order for a period
expected to exceed ninety days.
We affirm.
ISSUES
[2] M.D. raises three issues on appeal, two of which we find dispositive and which
we restate as:
(1) Whether the trial court violated M.D.’s due process rights during the
hearing on the petition to forcibly medicate M.D; and
(2) Whether the trial court erred by finding by clear and convincing evidence
that a forced medication order is necessary.
Appellee-Petitioner, Indiana University Health, Bloomington Hospital (IU
Health) raises one issue, which we restate as: Whether M.D. timely appealed
the trial court’s regular commitment order.
FACTS AND PROCEDURAL HISTORY
[3] On September 20, 2014, M.D. was admitted to IU Health after becoming
belligerent and combative at the consumption of several energy drinks and
other substances in a local strip club. The officer accompanying M.D. to IU
Health noted that M.D. “stated that he wanted to strangle someone, [he] also
made several comments that people were going to die + Satan was coming for Court of Appeals of Indiana | Memorandum Decision | 53A05-1411-MH-515 | June 2, 2015 Page 2 of 15 the world.” (Appellee’s App. p. 22). The officer concluded that M.D. “seemed
very violent towards other people” and opined that if M.D. “is not restrained he
will attempt to harm himself or others.” (Appellee’s App. p. 22). Dr. Kimberly
Irwin completed the Physician’s Emergency Statement, documenting that M.D.
“had a history of paranoid schizophrenia and became combative and belligerent
in public after consuming multiple energy drinks and possible drugs. His
mother claims he has been off his meds for 3-4 days. The patient is a danger to
himself and others.” (Appellee’s App. p. 24).
[4] On September 22, 2014, IU Health filed its petition for emergency detention of
mentally ill, which was approved by the trial court the same day. On
September 25, 2014, IU Health filed a report following emergency detention,
stating that Steven Goad, M.D. (Dr. Goad) had examined M.D. and found him
to be gravely disabled, requiring continuing care and treatment. That same day,
IU Health filed its petition for involuntary commitment. In its petition, IU
Health asserted that M.D. was suffering from a psychiatric disorder, as a result
of which he presented a substantial risk of hurting himself or others. The
petition elaborated that M.D. made threats that “people are going to die.”
(Appellee’s App. p. 2). In addition, the petition alleged that because of his
condition, M.D. is also gravely disabled and “displays very poor judgment.”
(Appellee’s App. p. 2). The physician’s statement accompanying IU Health’s
petition was completed by Dr. Goad. Dr. Goad affirmed that M.D. was
suffering from a psychiatric disorder and developmental disability which
impaired his ability to function. While he did not seek a forced medication
Court of Appeals of Indiana | Memorandum Decision | 53A05-1411-MH-515 | June 2, 2015 Page 3 of 15 order, Dr. Goad requested a commitment for a period expected to exceed
ninety days.
[5] On September 30, 2014, the trial court conducted a hearing on IU Health’s
petition. At the hearing, Dr. Goad testified that he was M.D.’s admitting
physician and had examined M.D. approximately seven out of the ten days
M.D. was at IU Health. Dr. Goad explained that he had diagnosed M.D. with
a chronic adjustment disorder and a verbal learning disorder, as well as possible
attention deficit hyperactivity disorder. He elaborated that M.D.’s “inability to
think logically and to plan lead to chronic problems in relationships and
behavior[.]” (Transcript p. 6). M.D.’s episodes occur one after the other
because of M.D.’s inability to plan and relate reasonably and understand what
he just experienced. Based on this diagnosis, Dr. Goad believed M.D. to be
gravely disabled to the point where he cannot take care of himself and is more
“like a child who’s not able to manage for himself and needs [] a parent like
person to take care of them.” (Tr. p. 7). Dr. Goad added that, if the petition
was granted, M.D. would be discharged to Centerstone.
[6] Although M.D. realizes he needs help, M.D. testified that he self-medicates
with marijuana but plans to continue to see Dr. Goad upon his release. M.D.
informed the court that he needs to get away from his mother because his
mother “doesn’t want [him] to smoke weed so she’ll call the cops.” (Tr. p. 18).
He conceded to having been admitted to IU Health five times previously, and
attributed all of those admissions to his mother. At the conclusion of the
testimony, the trial court issued an order of regular commitment. Specifically,
Court of Appeals of Indiana | Memorandum Decision | 53A05-1411-MH-515 | June 2, 2015 Page 4 of 15 the trial court found M.D. to be suffering from chronic adjustment disorder,
non-verbal learning disorder and determined him to be gravely disabled. The
trial court concluded M.D. to be in need of commitment for a period expected
to exceed ninety days. No forced medication order was entered.
[7] That same day, September 30, 2014, IU Health transferred M.D.’s commitment
to Centerstone. On October 1, 2014, M.D. was re-admitted to IU Health after
being notified by Centerstone that “M.D. has not been taking his meds and
needs to be in a locked facility for his own safety and the safety of others.”
(Appellee’s App. p. 12). On October 7, 2014, Perry Griffith, M.D. (Dr.
Griffith), a psychiatrist at IU Health, contacted the trial court:
The correct diagnosis for the patient in my opinion, is schizoaffective bipolar type. He needs a forced medication of Invega Sustenna. This would be for a dangerousness as he has threatened to kill people with a machete while in an untreated bipolar episode. The patient has been on a temporary commitment to Centerstone, and to IU Health in the year 2013, therefore I am asking for a regular commitment to the state of Indiana with a forced medication order of Haldol and Invega. The Invega will be used and the benefits far outweigh any negative side effects or there are no long-term side effects to Invega. He has been associated with this medication in the past and has taken it and has no problems with it. (Appellant’s App. p. 7).
[8] Recognizing that an involuntary commitment order was already in place, the
trial court characterized Dr. Griffith’s letter as a request for a forced medication
order, and set the matter for a hearing on October 9, 2014. During the hearing,
the trial court took judicial notice of the testimony from the September 30, 2014
Court of Appeals of Indiana | Memorandum Decision | 53A05-1411-MH-515 | June 2, 2015 Page 5 of 15 commitment hearing. Although M.D.’s counsel objected to “holding a
hearing,” she agreed to proceed after rejecting the trial court’s offer of a
continuance. Dr. Griffith testified about M.D.’s multiple prior admissions and
history of health diagnoses of psychosis and schizophrenia. M.D.’s counsel
objected during Dr. Griffith’s testimony on the ground that “[w]e’re here on a
forced medic, on a motion for a forced medication order. It’s [] the regular
commitment is not based on any kind of danger or violence and I think we’re
probably about to get into some hearsay as well.” (Tr p. 34). The trial court
overruled the objection. Dr. Griffith explained that M.D. needs “forced
medication for his underlying schizophrenia or schizoaffective bi-polar disease”
because he “doesn’t always take his medications as an out-patient.” (Tr. p. 36).
At the close of the evidence, the trial court issued an Amended Order of
Commitment – Forced Medication Order, ordering
1) [M.D.], is suffering from schizophrenic or schizoaffective disorder. Following his commitment on September 30, 2014, he was released. Within one day, it was necessary for him to be readmitted to the hospital. He threatened to harm others, stating that he would “kill with a machete.” 2) [M.D.] is clearly dangerous to others when not taking his medication. 3) [M.D.] has a history of medication non-compliance. 4) [IU Health] is granted an order to treat [M.D.’s] condition with Haldol Decanoate or Invega Sustenna. The benefits from these medications outweigh any danger from their side effects. (Appellant’s App. p. 4).
[9] M.D. now appeals. Additional facts will be provided as necessary.
Court of Appeals of Indiana | Memorandum Decision | 53A05-1411-MH-515 | June 2, 2015 Page 6 of 15 DISCUSSION AND DECISION
I. Scope of Appeal
[10] Because IU Health presents this court with a procedural threshold question
involving the scope of the appeal before us, we will address its issue first to
determine the appropriate parameters of this appellate proceeding. At the
center of this appeal are the trial court’s two orders: the involuntary
commitment order issued on September 30, 2014, and the forced medication
order, entered on October 9, 2014. M.D.’s notice of appeal, filed on November
5, 2014, indicates that he is appealing the forced medication order.
Nonetheless, M.D.’s appellate brief in large part contests the appropriateness
and sufficiency of the trial court’s involuntary commitment order. M.D. asserts
that the involuntary commitment order was timely and properly appealed by
way of the forced medication order. In essence, M.D. maintains that because
the trial court in its forced medication order altered the grounds for involuntary
commitment—from a chronic adjustment disorder which made M.D. gravely
disabled to a schizoaffective disorder which made him dangerous to others—the
sufficiency of the involuntary commitment order can be contested. IU Health
objects to M.D.’s attempt to bring the involuntary commitment order into play
and asserts not only that the appeal is untimely but M.D. “acknowledged that
the purpose of the [October 9, 2014] hearing was to hear evidence on IU
Health’s Petition for Forced Medication Order.” (Appellee’s Br. p. 11).
[11] The record established that on September 30, 2014, the trial court issued an
involuntary commitment order for a period expected to exceed ninety days.
Court of Appeals of Indiana | Memorandum Decision | 53A05-1411-MH-515 | June 2, 2015 Page 7 of 15 Barely seven days later, the trial court received a letter from Dr. Griffith, which
it characterized—uncontested by the parties—as a petition for a forced
medication order. At the commencement of the hearing on the petition, the
trial court reaffirmed Dr. Griffith’s request for a forced medication order.
During his testimony, Dr. Griffith elaborated on the process of seeking the
involuntary commitment and the grounds therefor, and testified on M.D.’s
schizoaffective illness and his dangerous behavior. M.D.’s counsel objected to
the testimony because “[w]e’re here on a [] motion for a forced medication
order. [] [T]he regular commitment is not based on any kind of danger or
violence[.]” (Tr. p. 34). The trial court overruled the objection after asking a
foundational question as to whether this is the kind of information the doctor
would rely on in reaching his diagnosis, to which Dr. Griffith responded
affirmatively. Later during the hearing, the trial court questioned Dr. Griffith
as to the fact that M.D. “does not always take his medication” and the different
types of medication M.D. has been prescribed in the past. (Tr. p. 36).
[12] Although the trial court allowed Dr. Griffith a lot of discretion in presenting
evidence on the grounds for an involuntary commitment—which were not
before the court at that time—it clearly attempted to keep the hearing on track
by asking pertinent questions regarding the request for a forced medication
order and the medical requirements for issuing such an order. While at first
glance the forced medication order might alter the grounds for involuntary
commitment by referencing M.D.’s schizoaffective disorder and dangerousness,
these comments should be interpreted in the light of the conditions for a forced
Court of Appeals of Indiana | Memorandum Decision | 53A05-1411-MH-515 | June 2, 2015 Page 8 of 15 medication order. See In Re Mental Commitment of M.P., 510 N.E.2d 645, 647-48
(Ind. 1987) (concluding that one of the requisite elements is a current and
individual medical assessment of the patient’s condition). As such, we cannot
conclude that the trial court’s hearing on the petition for forced medication was
in fact a disguised hearing on M.D.’s involuntary commitment. Therefore, if
M.D. wanted to appeal the involuntary commitment order, he should have filed
a notice of appeal within thirty days of the trial court’s September 30, 2014
order, which M.D. failed to do. See Ind. Appellate Rule 9(A)(1).
[13] Even though M.D. concedes that his appeal to the involuntary commitment
order was filed outside the thirty day period, he relies on our supreme court’s
opinion in In the Matter of the Adoption of O.R., 16 N.E.3d 965, 971 (Ind. 2014),
in an attempt to present the evidentiary sufficiency of the commitment for our
review. In In the Matter of the Adoption of O.R., our supreme court clarified that
[t]he untimely filing of a Notice of Appeal is not a jurisdictional defect depriving the appellate courts of the ability to entertain an appeal. Instead, the timely filing of a Notice of Appeal is jurisdictional only in the sense that it is a Rule-required prerequisite to the initiation of an appeal in the [c]ourt of [a]ppeals. Timely filing relates neither to the merits of the controversy nor to the competence of the courts on appeal to resolve the controversy. . . . [T]he right to appeal having been forfeited, the question [then becomes] whether there are extraordinarily compelling reasons why this forfeited right should be restored. Id. at 971.
[14] We are mindful that “our appellate rules exist to facilitate the orderly
presentation and disposition of appeals . . . and [] our procedural rules are
Court of Appeals of Indiana | Memorandum Decision | 53A05-1411-MH-515 | June 2, 2015 Page 9 of 15 merely means for achieving the ultimate end of orderly and speedy justice.” Id.
at 971-72 (quoting In Re Adoption of T.L., 4 N.E.3d 658, 661 n.2 (Ind. 2014)).
Even though a forfeited right to appeal can be restored by presenting
“extraordinarily compelling reasons,” we cannot condone its application in
what essentially amounts to a collateral attack on a previously issued final
judgment. See id. at 971. Granting an appellate review of the trial court’s
involuntary commitment order in the case before us would open the proverbial
floodgates as any final order at some point during a proceeding could be
contested by way of a collateral attack of the last order issued. Accordingly, we
limit our appellate review to the trial court’s forced medication order.1
II. Due Process Rights
[15] Continuing his characterization of the hearing on Dr. Griffith’s petition for
forced medication as a second commitment hearing, M.D. contends that his
due process rights were violated because the trial court failed to follow the
proceedings prescribed in Indiana Code section 12-26-7-4, the rights of subject
individuals during regular commitment proceedings.
[16] However, because we review the appeal to a forced medication order, we find
that Indiana Code chapter 12-26-2, governing the rights of persons during
voluntary and involuntary treatment of mentally ill individuals, is more
1 IU Health also contends that M.D.’s appellate brief was filed outside the thirty day period after notice of completion of transcript. See Ind. Appellate Rule 45(B)(1)(b). However, M.D.’s brief is file-stamped February 9, 2014, which was the final day to timely file his appellant’s brief.
Court of Appeals of Indiana | Memorandum Decision | 53A05-1411-MH-515 | June 2, 2015 Page 10 of 15 appropriate to the case at hand. Specifically, Indiana Code section 12-26-2-2
provides:
Notice of hearings; receipt of copies of petitions or orders; presence at hearings; application of section Sec. 2 (a) This section applies under the following statutes: *** (2) [I.C. §] 23-26-7 [involuntary commitment] (b) The individual alleged to have a mental illness has the following rights: (1) To receive adequate notice of a hearing so that the individual or the individual’s attorney can prepare for the hearing. (2) To receive a copy of a petition or an order relating to the individual. (3) To be present at a hearing relating to the individual. The individual’s right under this subdivision is subject to the court’s right to do the following: (A) Remove the individual if the individual is disruptive to the proceedings. (B) Waive the individual’s presence at a hearing if the individual’s presence would be injurious to the individual’s mental health or well-being. (4) To be represented by counsel. [17] Reviewing the proceedings of the forced medication hearing, it is clear that
M.D. was granted all the rights afforded to him by statute. Dr. Griffith’s
request for forced medication was filed on October 7, 2014. The following day,
the trial court scheduled a hearing for October 9, 2014, and signed a transport
order to ensure M.D.’s attendance at the hearing. Hearing notices were also
sent to M.D.’s counsel and to IU Health, and the trial court “provided copies of
Court of Appeals of Indiana | Memorandum Decision | 53A05-1411-MH-515 | June 2, 2015 Page 11 of 15 [Dr. Griffith’s letter] to the parties.” (Tr. p. 29). At the day of the scheduled
hearing, M.D. appeared in person and was represented by counsel. Although
the trial court was willing to grant M.D.’s counsel a continuance to prepare and
call witnesses, M.D.’s counsel declined, not knowing if it would be in her
“client’s best interest to ask for a continuance.” (Tr. p. 30). Accordingly, in
light of this evidence, we cannot conclude that M.D.’s due process rights were
violated.
III. Sufficiency of the Evidence
[18] Lastly, M.D. contends that there is “no clear and convincing evidence that a
forced medication order is necessary.” (Appellant’s Br. p. 11). Our supreme
court has addressed the issue of forced medication with antipsychotic drugs as
follows:
In order to override a patient’s statutory rights to refuse treatment, the State must demonstrate by clear and convincing evidence that: 1) a current and individual medical assessment of the patient’s condition has been made; 2) that it resulted in the honest belief of the psychiatrist that the medications will be of substantial benefit in treating the condition suffered, and not just in controlling the behavior of the individual; 3) and that the probable benefits from the proposed treatment outweigh the risk of harm to, and personal concerns of, the patient. At the hearing, the testimony of the psychiatrist responsible for the treatment of the individual requesting review must be presented and the patient may present contrary expertise. Equally basic to court sanctionable forced medications are the following three limiting elements. First, the court must determine that there has been an evaluation of each and every other form of treatment and that each and every alternative form of treatment has been specifically rejected. It must be plain that there exists no less restrictive alternative treatment and that the treatment selected is reasonable and
Court of Appeals of Indiana | Memorandum Decision | 53A05-1411-MH-515 | June 2, 2015 Page 12 of 15 it the one which restricts the patient’s liberty the least degree possible. Inherent in this standard is the possibility that, due to the patient’s objection, there may be no reasonable treatment available. This possibility is acceptable. The duty to provide treatment does not extend beyond reasonable methods. Second, the court must look to the cause of the commitment. Some handicapped persons cannot have their capacities increased by anti-psychotic medication. The drug therapy must be within the reasonable contemplation of the committing decree. And thirdly, the indefinite administration of these medications is not permissible. Many of these drugs have little or no curative value and their dangerousness increases with the period of ingestion. The court must curtail the time period within which they may be administered. If a patient does not substantially benefit from the medication, it should no longer be administered. In Re Mental Commitment of M.P., 510 N.E.2d 645, 647-48 (Ind. 1987).
[19] Following the involuntary commitment hearing on September 30, 2014, M.D.
was transferred to Centerstone. However, M.D. was re-admitted to IU Health
on October 1, 2014, because he had “not been taking his meds and needs to be
in a locked facility for his own safety and the safety of others.” (Appellee’s
App. p. 12). During the hearing on IU Health’s petition for forced medication,
Dr. Griffith initially testified about his medical assessment of M.D.’s mental
illness. He explained that M.D. has a long history of previous admittances on
the basis of schizophrenia. Based on his current observation of M.D., Dr.
Griffith reaffirmed the earlier diagnosis and informed the trial court that M.D.
“clearly becomes violent and threatening[.]” (Tr. p. 33). Dr. Griffith
elaborated that M.D. “needs forced medication for his underlying
schizophrenia or schizoaffective bi-polar disease of Invega Sustina or Haldol
Decanoate.” (Tr. p. 36). Because M.D. does not always take his medications
as an out-patient, Dr. Griffith recommended a monthly injection of Invega
Court of Appeals of Indiana | Memorandum Decision | 53A05-1411-MH-515 | June 2, 2015 Page 13 of 15 Sustina. Based on previous experience, M.D. “does very well” with that: “[h]e
is not threatening[,] he does not come in the Emergency Room by police
threatening to kill people at business establishments with a machete. His
thinking becomes clearer and he becomes a more logical reasonable person.”
(Tr. p. 37). Turning to Invega’s potential side effects, Dr. Griffith explained
that “there are no long term side effects that we know of” and the “[b]enefits for
him far outweigh any risks.” (Tr. pp. 38, 39).
[20] The limiting factors outlined in Mental Commitment of M.P. are present as well.
Due to M.D.’s history of refusing to take his medications and, at times, self-
medication with marijuana, Dr. Griffith considered it necessary to request a
forced medication order to treat M.D.’s mental illness. A less restrictive
alternative was attempted by his transfer to Centerstone, but this rapidly proved
to be unsuccessful. Although the trial court’s order is silent as to the time
period within which the forced medication order will apply, the order is time-
limited by statute. Pursuant to Ind. Code § 12-26-15-1(a), a commitment order
must be reviewed at least annually. Moreover, the trial court directed IU
Health to “submit a Periodic Report not later than September 30, 2015.”
(Appellant’s App. p. 6). “While it would have been better for the trial court to
include the periodic report deadline in its latest . . . forced medication order, the
statutory review requirement exists regardless of whether the trial court’s order
mentions it.” See J.S. v. Center for Behavioral Health, 846 N.E.1106, 1115 (Ind.
Ct. App. 2006), disapproved of on other grounds by Civil Commitment of T.K. v. Dep’t
of Veterans Affairs, 27 N.E.3d 271 (Ind. 2015). Accordingly, we conclude that IU
Court of Appeals of Indiana | Memorandum Decision | 53A05-1411-MH-515 | June 2, 2015 Page 14 of 15 Health presented clear and convincing evidence that M.D. was in need of a
forced medication order.
CONCLUSION
[21] Based on the foregoing, we conclude that M.D. did not timely appeal the trial
court’s involuntary commitment order. With respect to the trial court’s forced
medication order, we conclude that M.D.’s due process rights were not violated
during the proceedings and IU Health presented clear and convincing evidence
to support the issuance of the order.
[22] Affirmed.
[23] Bailey, J. and Barnes, J. concur
Court of Appeals of Indiana | Memorandum Decision | 53A05-1411-MH-515 | June 2, 2015 Page 15 of 15