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.