Matter of JB

                                No. 85-46
               IN THE SUPREME COURT OF THE STATE OF FIONTANA
                                    1985



IN THE MATTER OF
J.B., ~espondent/Appellant.




APPEAL FROM:     District Court of the Thirteenth Judicial District,
                 In and for the County of Yellowstone,
                 The Honorable William J. Speare, Judge presiding.


COUNSEL OF RECORD:

         For Appellant:
                 Terry L. Seiffert, Billings, Montana

         For Respondent:
                Harold Hanser, County Attorney, Billings,
                Montana
                Hon. Mike Greely, Attorney General, Helena,
                Montana



                                Submitted on Briefs:    May 3, 1985
                                            Decided:    September 10, 1985



Filed:    SEP 1 01985



                                Clerk
Mr. Chief Justice J. A. Turnage del'ivered the Opinion of the
Court.
        J. B. appeals an order of involuntary mental commitment
in the Montana State Hospital at Warm              Springs, Montana,
entered in the District Court of the Thirteenth Judicial
District, Yellowstone County, on December 31, 1984.
        We affirm the order of involuntary commitment.
        Appellant      raises    the   following   issues   for   our
determination:
        1.   Whether there was sufficient credible evidence to
support the conclusions that the respondent was seriously
mentally ill.
        2.   Whether the respondent was properly detained under
an emergency situation.
        3.   Whether    the commitment herein was to the least
restrictive environment.
        For a long period of time J. R .      had been a patient of
psychiatrist Dr. Joseph D. Rich, M. D.        Dr. Rich had admitted
J. B.   for psychiatric         treatment to Deaconess Hospital in
February 1982, March 1983, August 1983, April 1984, May 1984,
and on December 20, 1984.
        Police officers brought J. B.        to Billings Deaconess
Hospital on December 20, 1984, for driving his automobile
around in circles in an open field, acting bizarre and talk-
ing of demons and odd religious topics.
        Dr. Rich's report of December 26, 1984, states:
              [J. B . ] is a 37-year-old divorced white
              male who was admitted to the Psychiatric
              Unit of the Billings Deaconess Hospital
              under my care on 12/20/84. The patient
              has a past history of multiple admis-
              sions to this hospital for very similar
              reasons, and my diagnosis has been that
              of a BIPOLAR AFFECTIVE DISORDER OF THE
              MANIC TYPE.     Each admission has been
              precipitated because of his failure to
            return to see me for proper medication
            management and because he has ceased
            taking his medications.  This time is
            essentially the same.
            I have met daily with [J. B. I and have
            been attempting to treat him with Lithi-
            um Carbonate, but this has been diffi-
            cult because it is available in only an
            oral preparation; and. he has been very
            resistant and very manipulative in
            trying to avoid taking this medication.
            I have had to maintain him on the locked
            unit of our Psychiatric facility, and he
            has continued to be very delusional and
            manic in his behaviors; and I have come
            close to having to place him in full
            restraints on a number of occasions.
            Early this morning, I was conta.cted by
            the nurse on duty who was very concerned
            about his state of irritability and
            apparent distress and quoted him as
            saying, "I feel like killing anybody and
            anyone in sight". Extra medication was
            ordered, however this is an example of
            our concerns about his instability and
            his potential for harm to someone else.
            My diagnosis continues to be that of a
            bipolar affective disorder, manic, of
            the chronic type with an acute exacerba-
            tion.   I believe that [J. B.1 is seri-
            ously mentally ill and that he is
            incapable at this point of caring for
            himself and appreciating the extent of
            his illness.      I regard him as a
            potatential [sic] danger to himself and
            to others because of his emotional
            disturbance.
            I believe that [J. B. I is in need of a
            longer term treatment program such as
            would be available at the Montana State
            Hospital at Warm Springs, Montana. I am
            recommending that he be committed there
            for treatment and transfer as soon as
            possible.
        Petition for commitment was filed December 26, 1984, by
the Yellowstone County Attorney alleging J. B. to be serious-
ly mentally ill.     On December 28, 1984, the District Court
after hearing entered a statement of facts and order finding
J. B.   to be   seriously mentally   ill, beyond   a   reasonable
doubt, and as defined in S 53-21-102(14), MCA, and committing
him to Montana State Hospital at Warm Springs, Montama, for
treatment and evaluation for a period not to exceed three
months.
      At the December 28, 1984, hearing Dr. Rich testified:
          Q. (By Mr. Brooks) Dr. Rich, now, you
          have examined [J. B. I recently; is that
          correct?
          A.   That's correct.
          Q. And have you been able to determine
          whether or not [J. B.] is at this point
          suffering from a serious mental disease?
          A. Yes, I believe he is. I've made the
          diagnosis of a bipolar affective disor-
          der of the manic type, and it's current-
          ly referred to as a manic depressive
          disorder.
          Q.  And with [J. B. I , how has this type
          of mental illness been manifested?
          A. Well, this time it was very similar
          to other times. He becomes excessively
          religious. He begins to feel there are
          people out there attempting to harm him.
          He begins to do things that really
          afterwards cause him a great deal of
          embarrassment in the community. He d.oes
          very erratic kinds of things. He talks
          of having to kill.    He becomes exces-
          sively and overtly sexual.


          Q. Now, recently based on your diagno-
          sis, do you think at this time that
          rJ. B. I is able to protect himself as
          far as his health and as far as his
          welfare is concerned in his present
          living situation?
          A. No, I really do not, a.nd I could
          give some examples for that. First of
          all, I've spent hours discussing with
          him how medication really helps his
          illness, and I've had these discussions
          when he's healthy, and yet he refuses to
          take the medication to maintain himself
          out of the hospital.
          Now that he's in the hospital, this
          medication can only be given orally. It
          cannot be given in a shot form, and he's
          done everything he can to avoid talking
          [sic] the medication, and he's beating
           us at the game, and they are going down
           even though I've been increasing the
           dose.


           I talked to one of our nurses the other
           evening.   She said "How can I handle
           this, because he feels an overwhelming
           urge to kill. "  I gave her some orders
           about not being with him without a man
           in attendance, so I feel that this
           illness is very devastating to him and
           potentially is a danger to others.
           (2. From what you've said, I take it the
           major problem at this point is the fact
           that you cannot control and supervise
           his medication?
           A. That's right.        This particular
           medication is not available as a shot,
           so he does get better with treatment,
           and there is a possibility for him to
           maintain himself out of the hospital,
           but he has to work along with a psychia-
           trist to take the medication on a regu-
           lar basis, to get blood tests on a
           regular basis, and he has failed to do
           that over and over again.
     Without objection Dr. Rich's report of December 26,
1984, was admitted in evidence.

      J. B. testified as follows:
           Q. Have you made threats of injury to
           anybody?
          A.     Yes.
           Q.  And was that what the doctor testi-
           fied to?
          A.     Yes.


                              I

     Was there sufficient credible evidence to support the
finding that J. B. was seriously mentally ill?
     We conclude that there was sufficient credible evidence
to support the District Court findings.
         The   definition    of   "mental disorder"    is   stated    in
    53-21-102 (5), MCA:
               "Mental disorder" means a.ny organic,
               mental, or emotional impairment which
               has substantial adverse effects on an
               individual's cognitive or volitional
               functions.
        The definition of "seriously mentally ill" is stated in
§   53-21-102 (14), MCA:
               "Seriously mentally ill" means suffering
               from a mental disorder which has result-
               ed in self-inflicted injury or injury to
               others or the imminent threat thereof or
               which has deprived the person afflicted
               of the ability to protect his life or
               health. For this purpose, injury means
               physical injury.     No person may be
               involuntarily committed to a mental
               health facility or detained for evalua-
               tion and treatment because he is an
               epileptic, mentally deficient, mentally
               retarded, senile, or suffering from a
               mental disorder unless the condition
               causes him to be seriously mentally ill
               within the meaning of this part.
        The     standard     of   proof   required    is    stated    in
    53-21-126 ( 2 ) , MCA:
               The standard of proof in any hearing
               held pursuant to this section is proof
               beyond a reasonable doubt with respect
               to any physical facts or evidence and
               clear and convincing evidence as to all
               other matters, except that mental disor-
               ders shall be evidenced to a reasonable
               medical certainty.   Imminent threat of
               self-inflicted injury or injury to
               others shall be evidenced by overt acts,
               sufficiently recent in time, as to be
               material and relevant as to the respon-
               dent's present condition.
        The previously quoted facts from the record establish
proof beyond a reasonable doubt as to J. B.                having been
seriously mentally ill at the time of his commitment.
        Dr. Rich's report of December 28, 1984, established
that J. B. suffered from a mental disorder, bipolar affective
disorder of the manic type, a manic depressive disorder.             His
testimony from the transcript shows that he had admitted
J. B. to the hospital six times since February 1982, almost

every admission because J. B. refused to take his medication.
       Dr. Rich's report and testimony established that J. B.
had    stated, "I feel    like killing anybody and anyone in
sight."    J. B. testified that he had made threats and tha.t
was what the doctor was talking about.
        In the Matter of the Mental Health of Goedert (1979),
180 Mont. 484, 487, 591 P.2d 222, 224, this Court stated:
             While not every threat can be considered
             an overt act, the testimony and circum-
             stances of this case indicate that
             appellant's threats fulfilled the statu-
             tory requirement of an overt act.      A
             threat to kill is a verbal act that
             falls within the definition of an "overt
             act" as set forth in the statute.
        "The threat to kill another is a verbal overt act.   It
manifests the commission of a dangerous act upon   . . . anoth-
er."   In the Matter of F. B. (Mont. 1980), 615 ~ . 2 d867, 869,
37 St.Rep.    1442, 1445. J. B. expressed with agitation, "I
feel like killing anybody and anyone in sight."     This state-
ment is a verbal act that falls within the definition of an
"overt act" as set forth in the statute.
             When there is proof beyond a reasonable
             doubt that there is a present indication
             of probable physical injury likely to
             occur at any moment or in the immediate
             future, coupled with the finding within
             a reasonable medical certa-inty that the
             individual is suffering from a mental
             disorder, then involuntary civil comrnit-
             ment ...   is required.
F. B., 615 P.2d at 870.
       Our citizens are entitled to protection from harm at
the hands of those unfortunate persons who are victims of a
mental disorder.     Most certainly the legislature never in-
tended that blood of innocent people must first be shed
before the statutory definition of           "overt act" has been
satisfied.
        Most of J. B. Is commitments ordered by Dr. Rich were
related to his failure to follow prescribed medication and
medical advice in monitoring his condition while he was in an
outpatient status.         This failure, in the facts presented
here, has deprived J. B. of the ability to protect his health
and also meets the test of the statutory definition of "seri-
ously mentally     ill."     Section 53-21-102(14), MCA; In the
Matter of C. M. (1981), 195 Mont. 171, 635 P.2d 273.
        The core purpose of our statutory scheme in addressing
those unfortunate persons who suffer a mental disorder is to
secure for them such care and treatment, skillfully and
humanely administered, as may be in their best interest.
This purpose is codified in      §   53-21-101(1), MCA.


                                     I1
        Whether the respondent was properly detained under an
emergency situation.
        From the discussion of the first issue we conclude that
J. B. was properly detained under the emergency provisions of

S;   53-21-129, MCA.   J. B.'s five prior admissions to Billings
Deaconess Hospital and the recent events leading to his
admission of December 20, 1984, establish in the record that
the    requirements of     the   statute have been        substantially
satisfied.


                                     111
        Whether the commitment herein was to the least restric-
tive environment.
        The District Court found:
             4. In regard to treatment alternatives
             available, Dr. Rich testified that
             out-patient supervision, or a similar
             local course of treatment would not be
             appropriate nor helpful in improving
             respondent's condition at this time,
             primarily due to the inability of re-
             spondent to cooperate in taking his
             medication as prescribed; that respon-
             dent is, for the immediate future, in
             need of longer term, in-patient treat-
             ment at the Montana State Hospital in
             Warm Springs and that this is the least
             restrictive environment for respondent
             at this time.
The District Court's finding is based upon substantial credi-
ble evidence and will not be disturbed.
      The    findings   and   order   of   the District Court are
affirmed..




We concur:
Mr.    J u s t i c e F r a n k B. M o r r i s o n , J r . , d i s s e n t i n g :

        I respectfully dissent.

        S e c t i o n 53-21-102(14),            MCA, p r o v i d e s i n p a r t a s f o l l o w s :

            No p e r s o n may b e i n v o l u n t a r i l y committed
            t o a mental h e a l t h f a c i l i t y o r d e t a i n e d
            f o r e v a l u a t i o n and t r e a t m e n t b e c a u s e h e
            is   . . .       s u f f e r i n g from a m e n t a l d i s o r d e r
            u n l e s s t h e c o n d i t i o n c a u s e s him t o b e
            s e r i o u s l y m e n t a l l y i l l w i t h i n t h e meaning
            of t h i s part.

        The S t a t e m u s t p r o v e p h y s i c a l       f a c t s beyond a r e a s o n a b l e

d o u b t a n d a l l o t h e r m a t t e r s by c l e a r and c o n v i n c i n g e v i d e n c e .

To    prove      imminent         threat       of       injury      requires        a    showing o f

overt       acts,      recent       enough         to    be   relevant         to       the   present

condition.            S e c t i o n 53-21-126(2),          MCA.

        I     find     this      record       to    be     devoid       of    any       substantial

c r e d i b l e evidence t o support a                   finding of          "overt acts."            A

f a i r summary o f t h e e v i d e n c e a g a i n s t J . B .              i s t h e following:

(1)      He m a s t u r b a t e d d u r i n g h i s l a s t h o s p i t a l i z a t i o n .    ( 2 ) He

r e a c h e d o u t and t o u c h e d f e m a l e s t a f f nn t h e " b r e a s t o r on t h e

rear."          (3)      A   report       to a      n u r s e t h a t h e had           feelings of

u r g e s t o kill w h i c h w e r e d e s c r i b e d a s , n o t s o much a t h r e a t

of violence, but J.B.'s                   feelings.           (4)     A t t h e t i m e J.B.      was

a p p r e h e n d e d he was d r i v i n g a n a u t o m o b i l e a r o u n d i n c i r c l e s i n

an open f i e l d and when s t o p p e d s p o u t e d " r e l i g i o u s i d e a t i o n . "

        Dr.    Rich g a v e a n e x p e r t o p i n i o n i n a d d i t i o n t o t h e p r o o f

o u t l i n e d above.        The d o c t o r s t a t e d :         " I f e e l t h a t t h i s ill-

n e s s i s v e r y d e v a s t a t i n g t o him and p o t e n t i a l l y i s a d a n g e r

t o others."

        The     summary o f          evidence           against      J.B.     shows him        t o be

bizarre.         F4ore s h o u l d b e r e q u i r e d f o r commitment.                  This c a s e

s e t s a d a n g e r o u s p r e c e d e n t f o r i n c a r c e r a t i o n o f t h o s e deemed

t o be d i f f e r e n t .

        The c o u r t s s h o u l d be v i g i l a n t i n p r o t e c t i n g t h e r i g h t s

of    t h o s e s o u g h t t o b e committed.                The d i s c h a r g e o f j u d i c i a l
responsibility includes rigorous application of the statutory

mandate.   The State has failed to prove that J.B.      took overt

acts to create a present danger to either himself or others.

The   failure of   such proof   should   require   reversal of the

involuntary commitment.