State v. NAP

173 P.3d 1251, 216 Or. App. 432
CourtCourt of Appeals of Oregon
DecidedDecember 5, 2007
Docket060161220 A131291
StatusPublished

This text of 173 P.3d 1251 (State v. NAP) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. NAP, 173 P.3d 1251, 216 Or. App. 432 (Or. Ct. App. 2007).

Opinion

173 P.3d 1251 (2007)
216 Or. App. 432

In the Matter of N.A.P., Alleged to be a Mentally Ill Person.
STATE of Oregon, Respondent,
v.
N.A.P., Appellant.

060161220; A131291.

Court of Appeals of Oregon.

Argued and Submitted August 21, 2007.
Decided December 5, 2007.

*1252 Liza J. Langford, Portland, argued the cause and filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Michael C. Livingston, Senior Assistant Attorney General, filed the brief for respondent.

Before SERCOMBE, Presiding Judge, and BREWER, Chief Judge, and CARSON, Senior Judge.

SERCOMBE, J.

Appellant appeals an order of involuntary civil commitment. In one of her assignments of error, appellant argues that there is insufficient evidence in the record to establish that she suffers from a mental disorder that renders her a danger to herself. ORS 426.005(1)(d)(A). On de novo review, State v. Hitt, 179 Or.App. 563, 565, 41 P.3d 434 (2002), we conclude that the court erred in finding clear and convincing evidence that appellant's mental disorder causes her to be a danger to herself. Because we reverse the trial court's order on that claim of error, we need not address appellant's other assignments of error.

The relevant facts are undisputed. At the time of her commitment hearing, appellant was 40 years old, unemployed, and living in her own subsidized apartment. She was involuntarily hospitalized after she sought medical attention for what she described as a "headache;" her testimony indicates that she became uncooperative with hospital staff, was placed in restraints, and asked hospital staff to kill her.

The precommitment investigation report stated that appellant complained that the interviewing doctor did not ask her "`organic' questions regarding how to resolve the issue of the computer in her head and [its] running of her life and/or trying to kill her." She stated that she had come to the hospital for help but that she had simply "experienced the same thing that always happens when I go. They don't believe me and they want to keep me and send me to a hearing."

Appellant told the doctor that she had been diagnosed with a psychiatric disorder in 1997 but that she was not "psychiatric." She also stated that she wanted the examiner to kill her because she could not "go on like this anymore."

The precommitment investigation report concluded that appellant

*1253 "does not believe she has a mental disorder and is quite adamant about not taking any medication. She is completely delusional about her situation and is unwilling to listen to the possibility of anything other than what she believes to be true. She is quite insistent on having someone in the medical community take her life (for her) because she `can't go on like this any longer.' She does not participate in voluntary treatment on any level and * * * outpatient commitment is not in her best interest at this time."

At the precommitment hearing, appellant was examined by Dr. O'Malia and by LaRowe. She testified that she heard voices, slept very little, and that her neighbors were "coughing" at her and disturbing her. She stated that she preferred not to take her medication because she wanted to "continue" her life. She also testified that the sadness and depression associated with her disorder had been going on for 15 years and that her life had been "really bad." She repeated that she had delusions and heard voices telling her things. Indeed, during the hearing, appellant was attending to those voices.

Appellant also testified that she did not want to "go on living" and that she had felt that way for five years. She admitted that she had requested that hospital staff kill her, but explained that she just wanted the attendants to take "a little heavier responsibility for her." When the examiner asked her if she had ever thought about hurting herself, she said that she would "have a hard time doing that." He then asked her whether she had been feeling increasingly desperate. Appellant answered yes, stating that she lived in fear in her current apartment and wanted to move. The examiner then stated that he was worried that, if she were discharged, she might feel overwhelmed and attempt to hurt herself. She agreed because she could not "control her anger or laughter. I can't control my emotions at all." She agreed that the condition was getting worse and that she felt a loss of control. Appellant also testified that she felt isolated and that she had missed appointments with her caseworker over the previous few months after her voices told her that it was unnecessary for her to check in or to take her medications.

Both mental health examiners concluded that appellant suffered from a mental disorder (paranoid schizophrenia) and that she was a "danger to self" and would not benefit from voluntary treatment; they recommended that she be committed. They noted appellant's testimony that she had hallucinations, admitted feeling depressed, had sleep and appetite problems, wished others would kill her, and had no support system.

The court ruled as follows:

"Well, [addressing appellant], you know, it seems to me that with this very, very difficult situation and things getting worse for you, maybe it's time to at least try something a little bit different and just see whether they can do some good for you in the hospital.
"It seems, under the circumstances, it's best for me, really, to rely on the findings of-conclusions of the examiners, which I'll do, and find that there is indeed clear and convincing evidence that [appellant] suffers from a mental disorder and is dangerous to herself. The Court further finds that [appellant] is either unwilling, unable, or unlikely to participate in treatment on a voluntary basis and that a conditional release is either unavailable or not in her best interest."

On appeal, appellant argues that the state did not discharge its burden of proving that she is a "mentally ill person." The relevant standards are set by statute. ORS 426.130(1) authorizes an order of commitment if the court determines that a person is "mentally ill, based on clear and convincing evidence," and is unlikely to willingly participate in treatment on a voluntary basis.[1] For *1254 this purpose, ORS 426.005(1)(d)(A) defines "mentally ill person," among other things, as "a person who, because of a mental disorder, is * * * [d]angerous to self or others."[2]

The "clear and convincing evidence" standard of proof requires evidence that is of "extraordinary persuasiveness," so that the fact at issue is "highly probable." State v. Allen, 209 Or.App. 647, 652, 149 P.3d 289 (2006); State v. Hambleton, 202 Or.App. 526, 533-34, 123 P.3d 370 (2005). The evidence cannot be speculative, State v. Ayala, 164 Or.App. 399, 404,

Related

State v. Johnson
886 P.2d 42 (Court of Appeals of Oregon, 1994)
State v. Ayala
991 P.2d 1100 (Court of Appeals of Oregon, 1999)
State v. Allen
149 P.3d 289 (Court of Appeals of Oregon, 2006)
State v. Puha
144 P.3d 1044 (Court of Appeals of Oregon, 2006)
State v. Hitt
41 P.3d 434 (Court of Appeals of Oregon, 2002)
State v. Olsen
145 P.3d 350 (Court of Appeals of Oregon, 2006)
State v. Hambleton
123 P.3d 370 (Court of Appeals of Oregon, 2005)
State v. Simon
42 P.3d 374 (Court of Appeals of Oregon, 2002)
State v. L. P.
160 P.3d 634 (Court of Appeals of Oregon, 2007)
State v. N. A. P.
173 P.3d 1251 (Court of Appeals of Oregon, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
173 P.3d 1251, 216 Or. App. 432, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-nap-orctapp-2007.