In re S.M.

JUSTICE McKINNON,

dissenting.

¶33 The Court concludes there was sufficient evidence to support the District Court’s determination that S.M. suffered from a mental disorder requiring commitment. Opinion, ¶ 20. The Court supports its conclusion with evidence that S.M. was noncompliant in taking medications and therefore, pursuant to § 53-21~126(lXa), MCA, was “unable to provide for [her] own basic needs of food, clothing, shelter, health, or safely.” Opinion, ¶ 20. It is my opinion that an individual, even one suffering from a mental disorder, may refuse to take medications absent satisfaction of the statutory criteria authorizing a court to involuntarily commit, detain, and medicate her at a state hospital. The refusal to take medication may not, by itself, serve as the basis for an involuntary commitment of the mentally ill. The Court’s decision today allows the State to place in a state hospital an individual who has chosen not to take a medication — for potentially any number of reasons — where no evidence has otherwise been presented that the individual is unable to take care of her own basic needs. A person suffering from a mental illness should have the same right to refuse medication as those who are free of mental illness, unless the State can demonstrate one or more of the statutory criteria. I therefore cannot agree with the Court’s resolution of Issue 1.

¶34 I do, however, believe the evidence supports the District Court’s finding pursuant to § 53-21-126(lXd), MCA — that S.M.’s mental disorder, if left untreated, would predictably result in deterioration to the point that S.M. would not be able to provide for her basic needs. The alleged constitutional infirmity of that subsection was not sufficiently raised in the trial court, and the trial court did not render a decision addressing the subsection’s constitutionality. Thus, I would decline to consider the constitutionality of the subsection on appeal, and I would affirm the District Court’s determination that S.M. suffered from a mental disorder requiring her commitment pursuant to § 53<21-126(l)(d), MCA. Lastly, because it is my opinion that the evidence supports only a finding pursuant to § 53-21-126(l)(d), MCA, the District Court may not require commitment to the state hospital, *143but rather may place an individual in a community facility or program. Section 53-21-127(7), MCA. I therefore dissent from the Court’s resolution of Issue 2.

¶35 It is undisputed that S.M. suffers from bipolar disorder, which is a qualifying mental disorder pursuant to § 53-21-102(9)(a), MCA. In determining whether commitment was required, the trial court had to consider the statutory factors set forth in§ 53-21-126(lXa) through (d). Although the State filed a petition alleging that the “imminent welfare” of S.M. required her involuntary commitment, the relevant statutory factors addressed at trial and by the Court were:

(a) whether the respondent, because of a mental disorder, is substantially unable to provide for the respondent’s own basic needs of food, clothing, shelter, health, or safety;
(d) whether the respondent’s mental disorder, as demonstrated by the respondent’s recent acts or omissions, will, if untreated, predictably result in deterioration of the respondent’s mental condition to the point at which the respondent will become a danger to self or to others or will be unable to provide for the respondent’s own basic needs of food, clothing, shelter, health, or safety. Predictability may be established by the respondent’s relevant medical history.

In deciding whether sufficient evidence has been presented, we have repeatedly stated that “ ‘Montana’s civil commitment laws are to be strictly followed.’ ” In re Mental Health of R.M., 270 Mont. 40, 44, 889 P.2d 1201, 1204 (1995) (quotingIre re Mental Health of S.J., 231 Mont. 353, 355, 753 P.2d 319, 320 (1988)). Therefore, we must be careful not to mistakenly interpret evidence of predictable deterioration as evidence that S.M. cannot currently take care of her own basic needs. The two subsections are distinct and the failure to take medication does not necessarily render a person unable to take care of her health, but may help substantiate a predictable deterioration conclusion. The key distinction is that subsection (a) requires evidence establishing that the respondent is currently unable to care for her basic needs, while subsection (d) addresses a future situation. Thus, the State must meet its burden as to the particular subsection relied upon, and the Court must be careful not to confuse the requirements of each subsection and the evidence offered in support of that section.

¶36 The Court did not address whether commitment was required under subsection (d), but rather confined its analysis to whether S.M. was able “at the time of the hearings” to “care for her basic needs, including her health.” Opinion, ¶ 20. In support of its conclusion, the *144Court cites examples of S.M.’s conduct which, while admittedly bizarre, do not evidence an inability to provide for her own needs. Opinion, ¶ 20. The District Court’s order, however, found that S.M. was unable to care for her basic needs because she failed to remain “medication compliant.” There is nothing in the record, including in the testimony propounded from the State’s mental health experts, indicating that S.M.’s basic needs of food, shelter, health and safety were not being provided for by either S.M. or a family member. In fact, the State’s expert witnesses testified that S.M. was not a threat to herself or others.

¶37 The Court nevertheless finds there was “substantial evidence” to support Larson’s opinion that S.M. was unable to provide for her basic needs, including S.M.’s refusal to take her medications, S.M.’s belief that she was being stalked, S.M.’s inappropriate removal of her clothes when detained, S.M.’s inappropriate touching of others when detained, and S.M.’s belief that while she was detained, others were changing her underwear at night. Opinion, ¶ 20. While the State’s expert may have agreed S.M. was unable to “take care of her basic needs,” the testimony of Larson and Dr. Gee was in the context of S.M.’s failure to take her medications and described an individual, admittedlymentally ill, who was removed from her surroundings and placed involuntarily in confinement. There was no evidence presented that S.M., when first detained, was malnourished, naked, without shelter, unsafe, or otherwise not likely to have her basic needs attended to by either herself or her mother, with whom she was living. Although there is little dispute, especially given S.M.’s history, that she would predictably deteriorate to a point where neither she nor or a family member would be able to adequately provide for her basic needs, the evidence the Court relies upon demonstrates what can, at best, be described as bizarre behavior rather than behavior that is harmful to S.M. or others. The evidence in no way substantiates a conclusion that S.M.’s basic needs are not being met.

¶38 What is left as a basis for commitment, after removing from consideration evidence of bizarre behavior, is S.M.’s failure to adequately maintain her medication dosages. It seems intuitively obvious that a person has a constitutionally protected interest in being left free to decide for herself whether to take a medication. The right most likely emanates from the Due Process Clause of the Fourteenth Amendment as part of the penumbra of rights inherent in the right to privacy, bodily integrity, or personal security. See Parham v. J.R., 442 U.S. 584, 626, 99 S. Ct. 2493, 2516 (1979) (Brennan, J., dissenting on other grounds); Rennie v. Mein, 462 F. Supp. 1131, 1144-45 (D.N.J.

*1451978) (on motion for preliminary iqjunction); Superintendent of Belchertown State Sch. v. Saikewicz, 370 N.E.2d 417, 424 (Mass. 1977); In re Mental Health of K.K.B., 609 P.2d 747, 750 (Okla. 1980); cf. Ingraham v. Wright, 430 U.S. 651, 673, 97 S. Ct. 1401, 1413 (1977) (“Among the historic liberties [protected by the Due Process Clause] was a right to be free from ... unjustified intrusions on personal security.”); Breithaupt v. Abram, 352 U.S. 432, 439, 77 S. Ct. 408, 412 (1957) (“right of an individual that his person be held inviolable”); see generally Developments in the Law—Civil Commitment of the Mentally Ill, 87 Harv. L. Rev. 1190, 1194-97 (1974). Certainly, if one or more of the statutory prerequisites contained in § 53-21-126(1), MCA, are first found to exist, then a court has authority to consider involuntary medication pursuant to § 53-21-127, MCA. In re Mental Health of S. C., 2000 MT 370, ¶ 9, 303 Mont. 444, 15 P.3d 861. Thus, “a State cannot constitutionally confine without more a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.” O’Connor v. Donaldson, 422 U.S. 563, 576, 95 S. Ct. 2486, 2494 (1975). A finding of mental illness alone cannot justify confining an individual against her will and does not disqualify a person from preferring her own home to the comforts of an institution. While the State may arguably confine a person to save her from harm, the choice not to follow a specific medical treatment remains that of the individual until she is dangerous to someone or cannot live safely in freedom. In re Mental Health of A.S.B., 2008 MT 82, ¶ 44, 342 Mont. 169, 180 P.3d 625 (Gray, C.J., dissenting).

¶39 Significantly, it is only upon conclusion of the post-trial disposition that a court may order involuntary medication, provided the court first finds it necessaiy to protect the person or the public or to facilitate effective treatment. Section 53-21-127(6), MCA, protects an individual’s interest in refusing unwanted medication unless certain factors are found to exist:

The court may authorize the chief medical officer of a facility or a physician designated by the court to administer appropriate medication involuntarily if the court finds that involuntaxy medication is necessaiy to protect the respondent or the public or to facilitate effective treatment. Medication may not be involuntarily administered to a patient unless the chief medical officer of the facility or a physician designated by the court approves it prior to the beginning of the involuntary administration and unless, if possible, a medication review *146committee reviews it prior to the beginning of the involuntary administration or, if prior review is not possible, within 5 working days after the beginning of the involuntary administration. The medication review committee must include at least one person who is not an employee of the facility or program. The patient and the patient's attorney or advocate, if the patient has one, must receive adequate written notice of the date, time, and place of the review and must be allowed to appear and give testimony and evidence. The involuntary administration of medication must be again reviewed by the committee 14 days and 90 days after the beginning of the involuntary administration if medication is still bemginvoluntarily administered. The mental disabilities board of visitors and the director of the department of public health and human services must be fully informed of the matter within 5 working days after the beginning of the involuntary administration. The director shall report to the governor on an annual basis.

¶40 In this instance, the Court is requiring S.M. to pursue a particular course of medical treatment which requires a specific dosage of medication in order to avoid confinement — prior to even having a trial. Importantly, S.M. is not refusing to take her medication; she is just not taking the medication in the amount the Court opines is necessary. For the State to invoke its interest of caring for its citizens as justification for the administration of treatment which results in a substantial intrusion upon the individual, the individual must first be incapable of making the decision on her own. See Addington v. Texas, 441 U.S. 418, 426, 99 S. Ct 1804, 1809 (1979); Rogers v. Okin, 634 F.2d 650, 657 (1st Cir. 1980). The predicate to confinement for failure to take medication must be the likelihood of serious harm to the individual or others. “People — mentally ill or otherwise — generally have the right to be left alone unless they are in imminent danger to those around them or are committing a criminal offense.” A.S.B., ¶ 46.

¶41 For the foregoing reasons, I respectfully disagree that S.M.’s failure to take her full dosage of medications may serve as a basis — absent evidence that she was unable to care for her own needs — for her involuntary commitment pursuant to § 53-21-126(l)(a), MCA. Nevertheless, the evidence did support a conclusion pursuant to § 53-21-126(l)(d), MCA, that S.M.’s mental disorder, if left untreated, would predictably result in a deterioration of S.M.’s mental condition to the point at which S.M. would become a danger to either herself or others. S.M. had a lengthy and recent history of prior involuntary commitments. Treatment of her mental disorder required medication *147at certain levels, which S.M. was having difficulty maintaining. S.M. offered several reasons why she was having difficulty acquiring her medication, but the expert testimony left little doubt that S.M.’s mental condition would predictably deteriorate such that she would be a danger to herself. “Predictability may be established by respondent’s relevant medical history.” Section 53-21-126(lXd), MCA. The evidence produced at trial substantiates a finding under subsection (d). Since I do not believe the constitutionality of subsection (d) was adequately presented to the District Court, 1 would affirm the District Court’s order of involuntary commitment pursuant to subsection (d).

¶42 Finally, pursuant to the criteria set forth in § 53-21-127(7), MCA, a court relying solely on the criterion provided in § 53-21-126(lXd), MCA, may order commitment only to a community facility or program. I therefore dissent from the Court’s resolution of Issue 2.