dissenting.
The majority has reached an understandable and even perhaps Solomon-like result in this matter. See Carr v. Dorenkamper (1990) 2nd Dist.Ind.App., 556 N.E.2d 1333, trans. denied. To be sure, the order to Tarpley to take medication, while continuing in an out-patient status is less restrictive and invasive than forcible medication under an involuntary commitment as an in-patient. Nevertheless, it is within the qualified right and prerogative of the individual to refuse such medication. Further, in my view, an order to the patient compelling him to take medication may not, under existing law, be enforced in the manner utilized by the trial court, if at all.
I have little, if any, doubt that the proceeding resulting in Tarpley’s incarceration was a direct civil contempt proceeding. The trial court specifically stated that the purpose of the contempt finding and the jailing of Tarpley was not to punish, but was to coerce compliance. This is the hallmark of civil contempt.
Even were it otherwise, and if Tarpley’s statement in open court that he intended to disregard the order be construed as an affront to the dignity and decorum of the court, the sanctions which might be imposed do not include indefinite and coercive incarceration. Although I.C. 34-4-7-6 (Burns Code Ed.Repl.1986) setting forth the permissible punishments for contempt, was repealed effective September 1, 1987, the present law does not contemplate an indefinite period of incarceration. In The Matter of Craig (1990) 2nd Dist.Ind.App., 552 N.E.2d 53.
Be that as it may, a defendant in a contempt proceeding, as here, must be afforded an opportunity to prepare and be heard in his own defense. He must be permitted to show justification, legal and/or factual, for his failure or refusal to comply; or at least to demonstrate that the failure or refusal was not, in its nature or manner, willful or contumacious. Such demonstration would be accomplished by evidence that refusal was the product of the mental illness itself. State ex rel. Kir-*78itsis v. Marion Probate Court (1978) Ind., 381 N.E.2d 1245.
Counsel for Tarpley represented to the trial court that his client “understands the consequence of his decision. I believe it is a [voluntary and knowing] decision.” Record at 245. This representation connotes only that Tarpley was aware that he might go to jail for not taking the medication. It does not disclose that Tarpley was acting freely, and with the requisite mental capacity. It does not exclude the very real possibility, if not probability, that the refusal was induced by Tarpley’s severe delusions and withdrawal from reality. In fact, there was medical evidence that reluctance and refusal to take medication is a common manifestation of the particular mental illness here involved. From this evidence and from the fact that Tarpley was not taking the medication, the only reasonable inference is that he was not acting willfully or in a conscious attempt to unjustifiably thwart the judicial process. In any event, the trial court’s contempt determination was somewhat less deliberative than it might have been.
Our Supreme Court has clearly held that the right of a person to refuse medication may be abrogated and forcible medication administered. Such invasion is permissible only if shown by clear and convincing evidence to be required for the treatment of the patient. This need must be carefully balanced against the patient’s presumptive right to the integrity of his person. In Re Mental Commitment of M.P. (1987) Ind., 510 N.E.2d 645 (opinion on transfer modifying In Re Mental Commitment of M.P. (1986) 2nd Dist., Ind.App., 500 N.E.2d 216 as to the standards and procedures under which a mental patient may be forcibly medicated). No case, however, has held or intimated that the alternative approved by the majority here fits within the statutory or constitutional framework which otherwise governs the rights and obligations of the parties involved. Accordingly, although the result reached today is perhaps an acceptable solution to the problem, it is not in my estimation within the present legal prerogative of the judicial system.1
For the reasons set forth, I dissent. I would reverse and remand with instructions to vacate the contempt judgment.
. It may be noted that the majority result here, contemplates the confinement of the patient in a jail or other penal setting as opposed to a more appropriate mental health medical facility. If the ultimate goal is to medicate the patient, that would seem to be more appropriately done as an in-patient and as authorized by present Indiana case law.