Opinion
No. 3-419 / 02-1786
Filed September 24, 2003
Appeal from the Iowa District Court forBlack Hawk County, Bruce B. Zager, Judge.
Respondent-appellant, E.H., appeals from the district court's order for his involuntary commitment based on a finding he was seriously mentally impaired. AFFIRMED.
Andrew Abbott of Dunakey Klatt, P.C., Waterloo, for appellant.
Thomas Ferguson, County Attorney, and Kimberly Griffith, Assistant County Attorney, for appellee.
Heard by Sackett, C.J., and Miller and Hecht, JJ.
Respondent-appellant, E.H., appeals from the decision of the district court that ordered his involuntary commitment based on a finding he was seriously mentally impaired. He claims (1) there was not clear and convincing evidence he is seriously mentally impaired, (2) physical impairment does not equate to serious mental impairment as defined in Iowa Code section 229.1 (2001), and (3) confinement to a nursing home is not the least restrictive placement. We affirm.
Background facts and proceedings.
Appellant is an eighty-five-year-old widower. He has a number of physical problems which require that he receive some assistance in caring for himself. Prior to his commitment he lived with his son, Michael, and received home healthcare from a visiting nurse.
During the weekend of the 28th and 29th of September, 2002, appellant became disoriented and confused. His son, Ross, sat with him that weekend while Michael was at work, and took appellant to the hospital emergency room. He was admitted because doctors suspected internal bleeding.
On October 2 Ross filed an application for order of involuntary hospitalization based on appellant's mental condition and the hospital's recommendation. Michael also filed an affidavit in support of the application. Dr. Iaana Popescu, M.D., filed an affidavit stating:
[E.H.] is suffering from acute confusion, delirium, and is not capable of making any decisions regarding his health care and daily living. Due to his mental status, the patient is currently at risk of harming himself, and needs treatment in a mental health facility until stable.
Following a hearing, the judicial hospitalization referee ordered appellant's commitment at the hospital. On October 11 appellant filed an appeal and requested his proposed transfer from the hospital to a nursing home be stayed pending appeal of his commitment. On October 14 he was transferred to a nursing home where he has remained during the pendency of this case.
On October 29 the district court heard the appeal. The court received a letter from a psychiatrist, Dr. Raja M. Junaid, M.D., F.A.P.A., recommending continued commitment, heard testimony from appellant and his two sons, and reviewed the commitment file. The district court found appellant (1) to be seriously mentally impaired, (2) to lack sufficient judgment to make responsible decisions concerning hospitalization or treatment, and (3) to be likely to injure himself or to suffer serious physical injury or death because of his inability to satisfy his own basic needs. The court ordered (1) appellant's continued commitment at the nursing home, (2) continued psychiatric out-patient follow-up, (3) periodic reports from appellant's psychiatrist concerning his need for placement, and (4) consideration of a guardianship in lieu of the commitment order.
Scope and standard of review.
"An involuntary commitment proceeding is a special action triable to the court as an ordinary action at law." In re J.P., 574 N.W.2d 340, 342 (Iowa 1998). "Our review is for errors at law." In re Melodie L., 591 N.W.2d 4, 6 (Iowa 1999). To justify involuntary commitment, the allegations in the application must be supported by clear and convincing evidence. Iowa Code § 229.12(3). "Clear and convincing evidence is more than a preponderance of the evidence but less than evidence beyond a reasonable doubt." J.P., 574 N.W.2d at 342. "It means that there must be no serious or substantial doubt about the correctness of a particular conclusion drawn from the evidence." In re L.G., 532 N.W.2d 478, 481 (Iowa Ct.App. 1995). "[T]he district court's findings of fact are binding on us if supported by substantial evidence." Id.; Iowa R.App.P. 6.14(6)( a).
Claims on appeal.
Appellant raises seven claims on appeal, four of which are challenges to the sufficiency of the evidence of the elements necessary to prove he is "seriously mentally impaired" as defined in Iowa Code section 229.1(15). He also claims (1) physical impairment does not equate to mental impairment for purposes of involuntary commitment, (2) confinement to a nursing home is not the least restrictive placement, and (3) even if he had a mental impairment when committed, later examinations showed he no longer had the impairment. We first address appellant's challenges to the finding he is seriously mentally impaired because our resolution of those claims will affect the analysis of the other three claims.
Iowa Code section 229.1(15) defines serious mental impairment:
15. "Seriously mentally impaired" or "serious mental impairment" describes the condition of a person with mental illness and because of that illness lacks sufficient judgment to make responsible decisions with respect to the person's hospitalization or treatment, and who because of that illness meets any of the following criteria:
a. Is likely to physically injure the person's self or others if allowed to remain at liberty without treatment.
b. Is likely to inflict serious emotional injury on members of the person's family or others who lack reasonable opportunity to avoid contact with the person with mental illness if the person with mental illness is allowed to remain at liberty without treatment.
c. Is unable to satisfy the person's needs for nourishment, clothing, essential medical care, or shelter so that it is likely that the person will suffer physical injury, physical debilitation, or death.
Appellant challenges the court's findings concerning his judgmental capacity and dangerousness.
Judgmental capacity . Section 229.1(15) requires, in addition to a finding of mental illness, that "because of that illness [the person] lacks sufficient judgment to make responsible decisions with respect to the person's hospitalization or treatment . . . ." The application, affidavits, and doctor's letter and report provided the following evidence to the judicial hospitalization referee. Appellant was "a little disoriented." His "awareness of his surroundings was worsening." He "appeared to be in/out of a psychotic state" and "was increasingly confused about where he was but was still at times lucid." He had "spontaneous conversations with people who were not in the room." He was "confused about what day it was" and was "unable to distinguish he was in a hospital." "He is suffering from acute confusion/delirium, and is not capable of making any decisions regarding his health care and daily living." Dr. Junaid's report noted:
The patient was admitted with a history of worsening memory and cognitive abilities for one year. He progressively got confused during one month prior to admission. He was also showing psychotic symptoms and was talking to people who were not there. He was confused with occasional lucid periods. . . . CT scan of the head was negative for bleed but showed moderate atrophy consistent with Alzheimer's dementia. . . .
The patient manifested lack of insight and poor judgment and he was demanding to leave the hospital.
The patient has been showing memory loss, confusion, agitation and a tendency to fall, and needs closer supervision.
MEDICINE: Aricept 5 mg at supper daily for memory problems. Risperdal 0.5 mg, 1 at 8 p.m. for agitation and psychotic symptoms. Celexa 20 mg, 1 daily for depression and anxiety.
The referee found this to be clear and convincing evidence appellant could not make responsible decisions concerning his own treatment. We conclude clear and convincing evidence supports this finding of the referee.
The district court in its de novo trial also had the physician's report made after appellant's commitment to the hospital, the testimony of appellant's sons, and appellant's own testimony.
Michael testified about contact with his father in the nursing home:
Ms. Griffith: And in talking with your father, is he making responsible decisions with respect to his treatment or hospitalization at this time? A. I don't think so.
Q. Do you feel he needs to be at Park View? A. He thinks he does not need to be there. But I think he does.
Q. He wants to come home? A. He wants to come home.
Appellant's son, Ross, testified:
Mr. Abbott: Is it possible that the ailments what concerned you about the health of your father were taken care of shortly after his admittance, and now he's in the condition he can make rational decisions, is that possible? A. Well, you know, I am not qualified to make that kind of evaluation. . . . But, in my opinion, since they say he has early Alzheimer's Disease, and then since on any occasion I talked to him lately he like, for example, can't remember things like a woman gave him his baths every day, Donna, who he had a good relationship with. The last time I talked to him at the nursing home, he didn't remember who Donna was. I mean, he is still confused about things. He is doing much better. I can tell he is doing much better, but that's because he is getting consistently good care from the nursing home.
Appellant also testified at the hearing:
Mr. Abbott: Do you think you are capable of making responsible decisions about your health? A. Yes.
Q. Would you be willing to follow advice from a doctor concerning your health if you were to seek that help? A. I would.
. . . .
Q. Is there anything else that you would like to say about how you are able to care for yourself? Or what you think about staying in Park View nursing home? A. I do not care to stay in Park View nursing center. As far as —
Q. If another doctor suggested you stay there for a short period of time, would you follow that doctor's advice? A. I would fight it if I could.
Q. If you had to, you would go because you knew it was in your best interests. If the doctor said it's in your best interests to stay there for a short period of time, would you go voluntarily? A. For a short period, yes.
Dr. Junaid wrote the following in a letter to the referee:
[The patient] had improved and was discharged from inpatient services on 10-14-02. He was transferred to Park View Nursing Home, as he could not function at home with his son. In my opinion, [the patient] continues to be seriously mentally impaired, but does not require full time care, custody, and treatment in a hospital at this time. However, he needs to be placed in a structured setting and was transferred to Park View Nursing Home. I am writing this letter to request outpatient follow up at [the clinic], and his commitment to Park View Nursing Home. Without such commitment he is likely to be uncooperative and may want to sign out.
Before the end of the hearing, appellant also stated he'd rather go back to the hospital than stay at the nursing home because he felt he was getting better care at the hospital.
Appellant's doctor and his sons were of the opinion he was unable to make responsible decisions concerning his placement and treatment. "In determining whether a decision is responsible, the focus must be on whether the grounds for the decision are rational or reasonable not what conclusion is reached." In re J.P., 574 N.W.2d 340, 343 (Iowa 1998). In contrast, appellant believed himself able to decide his own care, expressed his dissatisfaction with the care he was receiving at the nursing home, but agreed he would stay for a short time if a doctor said it was in his best interests. "A decision, although medically inadvisable, may be rationally reached, and if so, it is not the court's place to second guess the decision." Id. Although a fact finder could conclude clear and convincing evidence supports a finding different than that made by the district court, we are bound by the court's findings if supported by clear and convincing evidence. See In re Oseing, 296 N.W.2d 797, 800 (Iowa 1980). We conclude clear and convincing evidence supports the court's finding that appellant lacked sufficient judgment to make responsible decisions with respect to his placement or treatment.
Dangerousness . In addition to finding a person has a mental illness and cannot make responsible decisions concerning treatment, the statute requires a finding the person, because of that illness, is "likely, if allowed to remain at liberty, to inflict physical injury on `the person's self or others,' to inflict serious emotional injury on a designated class of persons, or be unable to satisfy the person's physical needs." J.P., 574 N.W.2d at 343 (quoting Iowa Code § 229.1(15)(a)). Appellant contends none of the three alternative elements of dangerousness is supported by clear and convincing evidence. We examine each element in turn.
A. Physical danger to self or others. The first statutory criterion of dangerousness is that the person "[i]s likely to physically injure the person's self or others if allowed to remain at liberty without treatment." Iowa Code § 229.1(15)(a). The danger a person poses to self or others must be evidenced by a "recent overt act, attempt or threat." J.P., 574 N.W.2d at 344. Socially unacceptable, even repugnant, behavior does not satisfy the overt act requirement. In re Mohr, 383 N.W.2d 539, 542 (Iowa 1986). An "overt act" connotes past aggressive behavior or threats by the respondent manifesting the probable commission of a dangerous act upon himself or others that is likely to result in physical injury. In re Foster, 426 N.W.2d 374, 378 (Iowa 1988). Verbalized delusions, even though bizarre, do not constitute the type of overt act necessary to establish dangerousness. See id. at 379. "Overt acts include behavior such as a threat to take one's life, . . . a threat to kill, . . . and verbal abuse coupled with aggressive physical action such as being `armed' with a baseball bat . . . ." Id. (quoting In re M.C., 716 P.2d 203, 207 (Mont. 1986)).
The judicial hospitalization referee made no findings concerning and cited no evidence of any overt acts by appellant. The district court concluded, in part, that "[b]ecause of that mental illness the Respondent is likely to physically injure himself," but made no findings and cited no specific evidence in support of that conclusion. Based on our scope of review, we determine that portion of the district court's order is not supported by clear and convincing evidence.
B. Serious emotional injury to others. The second alternative criterion for dangerousness is the person, because of that illness
[i]s likely to inflict serious emotional injury on members of the person's family or others who lack reasonable opportunity to avoid contact with the person with mental illness if the person with mental illness is allowed to remain at liberty without treatment.
Iowa Code § 229.1(15)(b). Iowa Code section 229.1(14) defines "serious emotional injury" as
an injury which does not necessarily exhibit any physical characteristics, but which can be recognized and diagnosed by a licensed physician or other qualified mental health professional and which can be causally connected with the act or omission of a person who is, or is alleged to be, mentally ill.
Iowa Code § 229.1(14). "[A] finding of emotional trauma is an insufficient basis for involuntary hospitalization." J.P., 574 N.W.2d at 344.
Neither the referee nor the district court cited this criterion of dangerousness as a basis for committing appellant. The doctors' reports and the testimony of appellant's sons provide no clear and convincing evidence for committing appellant on this basis.
C. Inability to provide for basic needs. The third statutory criterion for dangerousness is the person, because of the mental illness
[i]s unable to satisfy the person's needs for nourishment, clothing, essential medical care, or shelter so that it is likely that the person will suffer physical injury, physical debilitation, or death.
Iowa Code § 229.1(15)(c). The word "likely" means "probably or reasonably to be expected." Foster, 426 N.W.2d at 377.
Appellant argues he is able to care for his personal needs such as dressing, personal grooming, using the restroom, and making his own food. He admits he needs help getting out of bed in the morning, but claims that is due to his spinal stenosis.
The application Ross filed to have appellant committed provides information about appellant's ability to care for himself before his initial admission to the hospital.
He had fallen. . . . He was falling nearly every time he went to the bathroom. . . . His ability to control his movement of his limbs was growing less and less, i.e. he was unable to pick up a glass and move it to his mouth without spilling it. I fed him before we went to the hospital E.R. and he was at times eating without utensils, i.e. using imaginary spoons or forks.
Michael's affidavit adds, "[H]e has been falling from time to time and I would have to pick him up once or twice a week in the last month." Dr. Popescu's letter notes appellant "is suffering from acute confusion/delirium, and is not capable of making any decisions regarding his health care and daily living." Dr. Junaid's examination report notes:
The patient has been showing memory loss, confusion, agitation and a tendency to fall, and needs closer supervision. He was living with his son, Mike, who feels he cannot take care of him any more and they are requesting his placement in a nursing home.
. . . .
The patient has multiple medical illnesses and he has a history of recurrent depression and more recently gradual loss of memory and periodic confusion.
Dr. Junaid prescribed medication for the memory loss, the agitation and psychotic symptoms, and the depression and anxiety.
Based on this evidence, the judicial hospitalization referee found:
Respondent has had memory loss, confusion, agitation, tendency to fall, recurring depression, and psychotic episodes. He has become unable to care for his needs for nourishment, clothing, essential medical care or shelter, and his sons, despite efforts of family agencies to enable respondent to live at home.
On October 24, about two weeks after appellant's commitment, Dr. Junaid wrote:
[The patient] had improved and was discharged from inpatient services on 10-14-02. He was transferred to Park View Nursing Home, as he could not function at home with his son. In my opinion, [the patient] continues to be seriously mentally impaired, but does not require full time care, custody, and treatment in a hospital at this time. However, he needs to be placed in a structured setting and was transferred to Park View Nursing Home. I am writing this letter to request outpatient follow up at [the clinic], and his commitment to Park View Nursing Home. Without such commitment he is likely to be uncooperative and may want to sign out.
The social services director at the nursing home wrote in her fifteen day report, "He continues to demonstrate clinically significant psychiatric concerns. [He] does not currently require inpatient hospitalization, but is in need of facility placement such as is being provided at Parkview."
At the appeal hearing, Michael testified as follows:
Ms. Griffith: Okay, okay. When we were at the last hearing, you testified that your father was a danger to himself or others. A. Yes.
Q. Do you still feel he's a danger to himself or others? A. Yes.
Q. Do you feel that anything has significantly changed since the last hearing? A. Uh, as respect to [E.H.], except it doesn't-it does him a lot of good to be at Park View. Because he gets 24-7 care which I can't give him.
Q. Prior to the commitment, he was living with you? A. Yes.
Q. You were the primary caretaker? A. Yes.
Q. In addition to you, there were some home services being provided for a short period of time? A. Yes.
Q. Okay. Even with all of the services and with your 24-7 care, you were not able to maintain him at home? A. No, I am not.
Q. Do you feel that he is a danger to himself or others at this point in time? A. He still has very much trouble standing up and moving about. Except in his wheelchair. He falls down a lot. He runs into different things a lot.
Q. He is not able physically to care for himself at all? A. Yes. Definitely not physically.
Q. He needs someone to assist him getting up, going to the restroom? A. Yes.
Q. Getting food? A. Yes.
Q. Clothing, shelter? A. Yes.
Q. In and out of everywhere, is that basically right? A. Yes.
Q. Because of that you feel it's likely he physically may injure himself or others if he didn't have that 24-7 assistance? A. Yes, I think so.
. . . .
Q. Do you feel he needs nursing care or a doctor's care to provide that kind of assistance for him? A. Yes, he does.
Q. Does he have some other physical ailments besides the mental illness component we're talk[ing] about now? A. He has back and knee problems he says, and has problems with bladder control. And other minor things I guess. Depression and so forth.
Q. Is he incontinent? Does he need assistance in the bathroom area? A. Yes.
Q. And is he unable to satisfy his basic needs? A. I think he can't do that, yeah.
Q. You feel he would suffer physical injury or death? A. Yes.
Q. You feel he would hurt himself and not be able to feed and clothe himself, and with the incontinence just the uncleanliness and things of that nature? A. Yes.
. . . .
Q. Has Dr. Junaid expressed to you he needs to stay at Park View? A. Yes.
Q. Why did Dr. Junaid tell you he needed to stay at Park View? Because it's in the report? A. He is not competent. He is not able to take care of himself.
Q. Have you talked to Dr. Popescu, his family doctor, prior to this-about the situation now? A. Yes.
Q. What does she say? A. She said that he is not capable of taking care of himself either. He needs to be in a nursing home.
Q. Okay. Is there anything else that you want to add to what you already said? A. No. I can't take care of him any more. It's too hard.
Q. Can anybody provide the care for him in a home setting opposed to a hospital? A. Not a home setting. He needs a nursing home.
. . . .
Mr. Abbott: Okay. When he was receiving home-care services, how was he doing when he was receiving the home-care services? A. It was getting harder and harder for them to take care of him. Give him proper baths, give him sponge baths because they couldn't control him any more.
. . . .
Q. Has he caused himself any physical injury? A. Yes.
Q. Can you elaborate? A. Once running into different objects around the house, and putting braces on and falling down. Hurting himself.
Appellant testified at the hearing concerning his ability to care for himself:
Mr. Abbott: Can you take care of your own personal needs like dressing yourself, make your own food? A. Yes. The only thing I must make a statement that says in the mornings when I get up, because of the spinal stenosis, I need help to get out of bed and stand up.
Q. Do your own cleaning and personal grooming? A. I do.
Q. Are you able to stand up and help yourself get in and out of the bathtub? A. Yes.
Q. Are you able to use the restroom on your own? A. Yes.
. . . .
Q. Did Dr. Junaid perform any kind of life-base skills to see if you were able to take care of yourself? A. She never did.
At the close of the hearing, after receiving the evidence and closing arguments of counsel, the court made findings from the bench:
The court does find by clear and convincing evidence that based upon the medical reports provided by Dr. Junaid that he continues to be seriously mentally impaired. And that based on some episodes of delirium and/or pre-onset of Alzheimer's dementia coupled with depression and a variety of other mental illnesses. He is in fact and continues at this time to be seriously mentally impaired. . . . Likewise, because of the mental illness and the continuation of the serious mental impairment, he is likely to cause injury to himself unintentionally or otherwise. I do believe, not from that standpoint so much, but the other prong as set forth in the memorandum of law provided by Mr. Abbott he is generally unable to provide for his own basic needs on his own and does, in fact, have a serious risk of serious harm or death were he able to be put out on his own and be able to try to handle all these various matters on his own.
The district court had conflicting evidence before it. As fact finder, the court weighs the evidence and assesses the credibility of the witnesses. See Top of Iowa Co-op. v. Sime Farms, Inc., 608 N.W.2d 454, 468 (Iowa 2000); Field v. Palmer, 592 N.W.2d 347, 353 (Iowa 1999). We will not set aside the court's findings "unless, as a matter of law, the findings are not supported by clear and convincing evidence." J.P., 574 N.W.2d at 342. Certainly, appellant's physical problems play a large part in his inability to care for himself. However, his deteriorating mental abilities prevent him from recognizing his limitations and realistically taking the necessary precautions to protect himself from harm. We conclude clear and convincing evidence supports the findings of the district court in its de novo trial that appellant is seriously mentally impaired as defined in Iowa Code section 229.1(15).
Mental impairment versus physical impairment. Appellant also contends his physical impairments do not equate to mental impairment for purposes of involuntary commitment. Although we agree one's inability to provide for one's basic needs because of physical impairment alone cannot be the basis for an involuntary commitment for serious mental impairment, that is not the situation before us. As noted above, appellant's physical impairments create additional problems. However, it is his mental impairment that renders him unable to meet his high-level need for personal care. Clear and convincing evidence supports the district court's finding appellant's mental impairment makes him unable to care for himself and could lead to serious injury or death if he were put out on his own. See Iowa Code § 229.1(15)(c).
Continued serious mental impairment. Appellant claims, even if he was seriously mentally impaired when committed by the referee, later examinations showed he no longer had a serious mental illness. Continuing an involuntary commitment requires the same degree of impairment as an initial commitment. See B.A.A. v. University of Iowa Hosps., 421 N.W.2d 118, 126 (Iowa 1988) (holding the term "serious mental impairment" has the same meaning in section 229.37 as it does in section 229.1). Appellant notes his sons and Dr. Junaid indicate he is doing much better than when he initially was admitted to the hospital. We acknowledge appellant improved between his initial admission and the district court's trial de novo of his commitment. As noted above in our review of the evidence supporting his commitment by the district court, however, we conclude clear and convincing evidence supports the district court's finding appellant was seriously mentally impaired at the time of the district court's trial de novo.
Least restrictive placement. "It is not only the customary procedure, but the constitutionally and statutorily mandated requirement, to treat even seriously mentally impaired persons in the least restrictive environment medically possible." Leonard v. State, 491 N.W.2d 508, 512 (Iowa 1992) (citing B.A.A.,421 N.W.2d at 124); see Iowa Admin. Code r. 441-28.4(6) (1999). Appellant acknowledges "a reasonable argument could be made that [he] would benefit from treatment in a structured care facility," but contends such placement is inappropriate in his case because he is not currently seriously mentally impaired. He claims the involuntary commitment process is not the proper forum for determining he needs to be placed in a nursing home because of his physical ailments. In support of this claim, he points to the language in the court's commitment order that his family "should also consider whether a guardianship should be established . . . in lieu of this mental health commitment order."
If appellant's placement in the nursing home were solely because of his physical impairment, his argument would have merit. However, we already have determined the district court was correct in finding appellant is seriously mentally impaired. Consequently, the involuntary mental commitment procedure was a proper forum for placing him in the nursing home. The only placements suggested by appellant is his release to go home or that he be hospitalized. Based on the district court's determination he is seriously mentally impaired, we conclude appellant's placement in the nursing home is the least restrictive placement appropriate for him. We understand appellant's desire to retain some freedom and independence, but conclude clear and convincing evidence supports the district court's commitment order.