North Dakota State Hospital v. R.F.

KAPSNER, Justice,

dissenting.

[¶ 12] R.F., by his own admission, is a mentally ill individual requiring treatment. The question, then, is not whether R.F. should be receiving treatment, but what form the treatment should take. The State Hospital is the most-restrictive form of treatment for mentally ill individuals. The record does not clearly and convincingly indicate R.F.’s level of illness mandates in-patient hospitalization and, accordingly, I would reverse the district court’s finding that R.F. is receiving the least-restrictive conditions necessary to achieve the purposes of his treatment and remand for further consideration.

[¶ 13] R.F. has a history of dealing with his mental problems. R.F. has demonstrated an understanding of his need for medication and a willingness to seek medical and psychiatric care. Does the onset of early-stage dementia alter this equation? Of course. It alters the analysis to the extent of realizing R.F. is in need of a structured assistance program. However, confinement in the State Hospital is not the only mechanism capable of providing structure. The State Hospital did not adequately explain why the identified alternatives were not feasible. The entire oral testimony on this issue from Dr. Pryatel was as follows:

Q. You believe he needs to be inpatient?
A. Correct.
Q. For how long?
A. Well, I think that we’re going to try to down the road try to find some type of placement for him. A proper setting so he can be maintained on the outside.
Q. Does he have a home to return to?
A. No.
Q. So what type of — Has there been any inquiries into a setting in which this could be accomplished, or do you know where the status of that is?
A. Well, the social worker is looking into it. It has to be some type of basic care facility or nursing home, something like that.
Q. Where would this be at?
A. That has not been decided yet.
Q. You haven’t even started the investigation stage for an outpatient placement at this point?
A. Well, one issue is he’s from Minnesota so we need to determine whether he should go back to Minnesota or not.
Q. Has [R.F.] indicated a preference on that?
A. I’m not aware that he has.
Q. So at this point you don’t believe he’s suitable for release?
*910A. Correct.
Q. Do you have a prognosis of when he might be?
A. Well, we’re asking the court for 90 days, so I’m hopeful that within that time we can find some placement for him on the outside.
Q. But you don’t have anything that’s definite enough to give a time table on at this point?
A. Correct.

[¶ 14] Dr. Pryatel stressed the need for structure and stabilization. In his written Report Assessing Availability and Appropriateness of Alternative Treatment, Dr. Pryatel listed various alternatives cited by the majority and, to explain why these alternatives were inappropriate, stated R.F. “is irritable, grandiose, paranoid, has some confusion, and [exhibits] inappropriate touching.” These symptoms might explain why self-monitoring is inappropriate, but they do not explain why treatment somewhere on the continuum between self-monitoring and hospitalization is not feasible. The symptoms described in the report as the reasons for hospitalization had been substantially alleviated by the time of the hearing.

Q. There’s quite a bit of talk about the elevated Lithium at the time of admission. Has the behavior associated with that been alleviated since his admission?
A. Correct.
Q. What is his current behavior? Is he still evidencing the confused poor cognitive abilities?
A. He still has memory impairment and he appears to be somewhat grandiose, but his behavior is fine. He’s on Step 2. He’s on off floor privileges.
Q. And have you seen any evidence of behavior noted in the petition relating to sort of a sexual, overly sexu-alized speech patterns and so forth?
A. Well, when he was at Altru Hospital he was engaging in some touching behavior, and we saw just a little bit of it here, but not very much.
Q. Has it subsided or is it about the same what little you’ve seen?
A. I think its subsided pretty much.
Q. So I notice in the report of exam that you listed as a possible threat to others, inflicting serious bodily harm on another person, what was the basis for that conclusion?
A. Well, it would be the touching-type behavior.
Q. But you haven’t seen that—
A. It was sexual in orientation.
Q. But you haven’t seen that behavior persisting?
A. No.
Q. So at this point do you still believe that’s a risk?
A. Well, it all depends in the situation that he’s living in. If he’s living on his own and starts to have exacerbation of his illness, I think it would be more of an issue. If he’s living in a very structured situation, I don’t think there would be that much of an issue. Because when he’s living in the structure he’s taking his medications and would be able to control him and so on.

[¶ 15] The record does not demonstrate these less-restrictive placements were actually considered prior to recommending hospitalization. Beyond the passing reference to a social worker “looking into it,” the record does not show that a review of the availability and appropriateness of supervised-care facilities occurred. This absence of information also calls into question how the alternatives that were listed in Dr. Pryatel’s reports were identified, *911considered, and scrutinized. The record does not even indicate that other less-restrictive options were unavailable so that hospitalization was necessary.

[¶ 16] I would remand to the State Hospital and the district court to explain the rationale for discarding alternatives to hospitalization. See, e.g., Interest of D.P., 2001 ND 203, ¶ 12, 636 N.W.2d 921; Interest of J.K., 1999 ND 182, ¶ 19, 599 N.W.2d 337; Interest of U.A.M., 446 N.W.2d 23, 28 n. 4 (N.D.1989); Interest of Daugherty, 332 N.W.2d 217, 221 n. 1 (N.D.1983).

[¶ 17] R.F. does not have a statutory right to have someone merely “looking into” a less-restrictive placement or contemplate releasing him into such an alternative “down the road” when the record indicates he is amenable to treatment without the restrictions of being involuntarily committed to the State Hospital. R.F. has a statutory right to the least-restrictive conditions necessary to achieve the purposes of his treatment. N.D.C.C. §§ 25-03.1-21, 25-03.1-40(2). Stated differently, R.F. has the right to have viable and plausible alternatives adequately and fairly ■ considered before being ordered to the State Hospital for treatment.

[¶ 18] The district court stated the following regarding R.F.’s hospitalization:

[R.F.] does not have a home to return to at this point. ■ He does receive $900 per month in social security disability, which is some income that would be — could assist with low income housing. And I think it’s possible that he could get an apartment, although those planning and the necessary steps to apply and those types of things have not occurred at this point. I don’t believe that he’s a danger to others, but he is a danger to himself as evidenced by the overdose with the Lithium, which could have killed him.
I’m confident that the State Hospital will find a place to discharge him to, whether that’s just sending him back to Minnesota or finding him • some basic care facility in North Dakota. And they typically in cases like this, aren’t going to keep [R.F.] any longer than they need to. However, discharging him to the streets certainly isn’t an option, and another place, another setting has not been arranged.

I am not clearly convinced that this type of “nothing-else-to-do-with-him” rationale is sufficient to order in-patient hospitalization. The extent to which R.F.’s homelessness indirectly played a role in this decision seems troubling. See Interest of J.A.D., 492 N.W.2d 82, 85 (N.D.1992). Further, the district court’s statement that “another place, another setting has not been arranged” is telling. On its face, the statement seems to suggest that an alternative is possible, just not readily available. A mentally ill individual has the right to alternative treatment, however, and this right does not cease simply because the alternatives have not been administratively “arranged.” At the very least, if a less-restrictive program is identifiable and plausible, yet administratively foreclosed, the district court needs to explain these obstacles before ordering hospitalization.

[¶ 19] The problem with permitting the initial evaluation of viable alternatives to be watered down is that it turns in-patient hospitalization into the norm rather than the exception. In-patient hospitalization is not a way station at which less-restrictive alternatives are to be leisurely explored. The danger associated with a de facto reversal of the “analyze-alternatives-first” methodology is that the sense of urgency to explore viable, less-restrictive treatment alternatives understandably wanes once a patient has been hospitalized.

*912[¶ 20] I would reverse the district court’s order and remand for the statutorily required consideration of alternative treatment options.

[¶ 21] CAROL RONNING KAPS-NER.