dissenting.
[¶ 19] The district court’s finding that M.M. is delusional and therefore mentally ill, as defined by N.D.C.C. § 25-03.1-02(11), was not clearly erroneous. But mental illness alone is not enough for the involuntary commitment of a “person requiring treatment” under N.D.C.C. § 25-03.1-02(12). The person must also present a “serious risk of harm to that person, others, or property.” Id.
[¶ 20] The district court’s finding that M.M. was a “serious risk of harm” was based on M.M.’s refusal to submit to surgery for kidney stones. This is shaky ground on which to place such a finding. While kidney stones are undoubtedly painful and can lead to serious health complications, even death, refusing surgery is not an entirely unreasonable decision.
[¶ 21] A mentally ill person may risk his health by not submitting to surgery, but so could a mentally healthy person for fear of surgery, for religious reasons, because a mentally healthy person does not believe the possible benefits are worth the risk, or any number of other rational reasons. The United States Supreme Court has recognized that a “competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment.” Cruzan v. Director, Missouri Dep’t of Health, 497 U.S. 261, 278, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990). However, the Cruzan court warned that an incompetent person is not able to make an informed and voluntary choice to exercise a right to refuse treatment. Id. at 280, 110 S.Ct. 2841.
[¶ 22] Further complicating this situation, the state’s psychiatrist has sought and obtained an order to involuntarily medicate M.M. At hearing, M.M. had not yet been medicated because he had refused the offered medications. Despite M.M.’s not having been medicated, Dr. Pryatel testified that M.M.-was performing his daily living activities in the hospital and was not engaging in any behaviors threatening to himself or others. M.M. testified at the hearing. He was responsive to questions asked and the judgé found “that when he testified he didn’t appear to be delusional.”
[¶ 23] He was asked about his decision to refuse the kidney stone operation and responded:
Q. Okay. When you got sick with the kidney stones, did you refuse treatment?
A. No. They asked me if I wanted to have an operation, and I thought the logical thing to do would be to think about it because I didn’t have any prior soreness. It just hit me. I just couldn’t urinate. So I thought the hospital’s not going anywhere, why don’t I walk around the block and think about it. There’s other hospitals, there’s other destinations. I didn’t think it was a life-threatening situation. They told me that because I made that decision that I was mentally ill.
[¶ 24] Despite the unproblematic behavior at the state hospital and during the hearing, the psychiatrist testified that he wanted to medicate M.M. in the hospital and at the end of that period would accept the. same refusal of treatment from M.M.
Q. Would it be grounds to believe that he was mentally ill, the simple fact that he refused treatment for a serious medical condition?
A. Well, if he was, quote, unquote, sane, and carried on a rational coherent conversation with him and he just says for whatever reason I don’t want treatment for this now, or I want to go down someplace and get treatment elsewhere or some*84thing, then we probably would let him go. But the fact that he’s so impaired with his mental state that I don’t think he’s making a rational coherent decision in regards to this.
Q. To follow up, so what you’re saying is is you’re not sure that because of the mental condition that he understands the physical problem?
A. Correct.
Q. And is making an informed or at least coherent choice not to treat the medical problem?
A. Correct.
Q. The second problem being that if he is treated for 90 days and then shows good improvement and is ready for release, he can elect to take off. What would we do with him, I mean where would we place him?
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Q. So what you’re saying is, is that if he made that choice after you thought he was suitable for outpatient, that’s a risk you have to take?
A. Correct.
Q. But at this point you don’t think it’s a risk you’re willing to take?
A. Correct.
[¶ 25] I appreciate the doctor’s concern for M.M.’s ability to assess his condition particularly because at the time M.M.' originally refused the surgery M.M. was exhibiting delusional behavior. However, M.M. has continued to indicate he does not want surgery and the doctor’s concern is not supported by clear and convincing evidence that M.M. presents a serious risk of harm to himself, others, or property as required by N.D.C.C. § 25-03.1-02(12). Therefore, I respectfully dissent. I would reverse the order for involuntary treatment and the medication order.
[¶ 26] Carol Ronning Kapsner, Daniel J. Crothers