In re B.M.

7 Wash.App.2d 70

432 P.3d 459

In the MATTER OF the DETENTION OF B.M.

No. 50699-8-II

Court of Appeals of Washington, Division 2.

Filed January 8, 2019

PUBLISHED OPINION

Johanson, P.J.¶ 1 B.M. appeals from an order requiring the involuntary administration of antipsychotic medication under RCW 71.05.217(7). B.M. argues that (1) the superior court commissioner lacked a constitutionally compelling state interest to involuntarily administer antipsychotic medication, (2) the State failed to present sufficient evidence in support of its petition to involuntarily administer antipsychotics, and (3) the commissioner’s order is invalid because it failed to direct the maximum dosages that may be administered by the State. We affirm.

FACTS

I. BACKGROUND

¶ 2 In September 2016, B.M. was out jogging when he felt excruciating pain. He came to the conclusion that his neighbors shot him with a "Wi-Fi weapon" and were responsible for his injury. Verbatim Report of Proceedings (VRP) (June 13, 2017) at 9. He then unhooked his neighbor’s internet cable, threw a planter through the back windshield of his neighbor’s car, broke the car windows with a stick, and dented the car. The State charged B.M. with second degree malicious mischief, but B.M. was found to lack the capacity to stand trial, and his criminal charges were dismissed.

¶ 3 On June 13, 2017, a superior court commissioner presided over the resulting civil commitment petition. Ultimately, the commissioner found B.M. to be "gravely disabled" and involuntarily committed B.M. for up to 180 days at Western State Hospital. Clerk’s Papers (CP) at 10.

II. HEARING ON PETITION TO ADMINISTER ANTIPSYCHOTICS

¶ 4 Nine days later, Dr. Liban Rodol, B.M.’s treating psychiatrist at Western State Hospital, filed a petition for involuntary treatment with antipsychotic medication under RCW 71.05.217(7).

¶ 5 At the hearing in the superior court, Dr. Rodol testified that B.M.’s current diagnosis was a "[s]chizoaffective disorder, bipolar type." VRP (June 30, 2017) at 4. Dr. Rodol said that B.M. refused to accept any antipsychotic medication and that he still exhibited delusions of his neighbors attacking him. Additionally, Dr. Rodol testified that B.M. said that he would take only Celexa and Klonopin. Celexa and Klonopin treat anxiety and depression, and Dr. Rodol opined they would not be effective to treat B.M.’s symptoms. In Dr. Rodol’s opinion, antipsychotic medication would help with psychotic symptoms like delusions, and it could also work as a mood stabilizer to help with manic episodes. Dr. Rodol believed that antipsychotic medication was necessary for B.M. to recover to the point where he would be discharged.

¶ 6 Dr. Rodol testified that since he had filed the petition, there had been multiple incidents where B.M. had been verbally aggressive towards staff and had instigated fights. In Dr. Rodol’s opinion, B.M.’s behavior would likely continue or worsen if he remained off of antipsychotic medication.

¶ 7 Dr. Rodol testified that antipsychotic medication was both necessary and effective in treating B.M. In his opinion, alternative treatments like seclusion, restraints, or milieu therapy would not treat B.M.’s psychotic symptoms and would not address concerns about getting him discharged and keeping people safe. B.M. had previously taken an antipsychotic, Seroquel, and Dr. Rodol testified that "presumably [B.M.] tolerated the medication" without too many problems. VRP (June 30, 2017) at 10.

¶ 8 B.M. testified that he had taken antipsychotic medication in his past and that he had a very strong reaction to it. He said he "fear[s] for [his] life when [he] take[s] it." VRP (June 30, 2017) at 26. He testified that he was not willing to take antipsychotic medication and that the medical professionals would have to forcibly inject him every time.

III. RULING

¶ 9 In his oral ruling, the commissioner said he was "not exactly 100 percent sure one way or the other" but that he would "allow the order to stand." VRP (June 30, 2017) at 36-37. The commissioner entered findings of fact and conclusions of law. Finding of fact 4 said the State had "a compelling interest in administering antipsychotic medication" because

? [B.M.] has suffered or will suffer a severe deterioration in routine functioning that endangers [B.M.’s] health or safety if he/she does not receive such treatment, as evidenced by [B.M.’s] past behavior and mental condition while he/she was receiving such treatment;

? [B.M.] will likely be detained for a substantially longer period of time, at increased public expense, without such treatment [;]

? Other: _Has been aggressive and goading others into trying to fight and without medication it is likely to continue or worsen.

CP at 20-21. The commissioner also entered finding of fact 5, which stated that the antipsychotic medication was necessary and effective and that alternatives were less effective because they would be more likely to prolong the length of commitment and would not address B.M.’s symptoms.

¶ 10 The commissioner authorized the State to administer one antipsychotic at a time and gave B.M. some input and the ability to veto one of the options. Additionally, the commissioner determined that review would occur in 60 days. The order remained in effect until November 30, and on that day a new civil commitment order was entered.

ANALYSIS

I. MOOTNESS

¶ 11 As a threshold issue, the State argues that the case is moot. Although the case is moot, we exercise our discretion to address the issues presented.

A. PRINCIPLES OF LAW

¶ 12 A case is moot if a court cannot provide effective relief. In re Det. of W.R.G. , 110 Wash. App. 318, 322, 40 P.3d 1177 (2002). An appellate court may still decide a moot case if the case involves "matters of continuing and substantial public interest." W.R.G. , 110 Wash. App. at 322, 40 P.3d 1177. However, challenges that are fact specific to a particular case and that are unlikely to recur will not support review. W.R.G. , 110 Wash. App. at 322, 40 P.3d 1177. But when orders have adverse consequences in future commitment proceedings, an appeal is not moot. In re Det. of M.K. , 168 Wash. App. 621, 626, 279 P.3d 897 (2012) ; In re Involuntary Treatment of L.T.S. , 197 Wash. App. 230, 234, 389 P.3d 660 (2016).

B. COLLATERAL CONSEQUENCES

¶ 13 This case is not moot because like an involuntary commitment order, an order to involuntarily administer antipsychotic medication can have collateral consequences.

See M.K. , 168 Wash. App. at 626, 279 P.3d 897. The legislative intent in RCW 71.05.012 states that "the consideration of prior mental history is particularly relevant in determining whether the person would receive, if released, such care as is essential for his or her health or safety." (Emphasis added.) For individuals under a commitment order "a prior history of decompensation leading to repeated hospitalizations or law enforcement interventions should be given great weight in determining whether a new less restrictive alternative commitment should be ordered." RCW 71.05.012 (emphasis added); see also RCW 71.05.575(2) (when determining whether an offender is dangerous to himself or others "a court shall give great weight to any evidence submitted to the court regarding an offender’s recent history of judicially required or administratively ordered involuntary antipsychotic medication while in confinement"); see also RCW 71.05.212(4)¹ (when conducting an evaluation prior to release for offenders with a mental illness believed to be dangerous, the designated professional "shall consider an offender’s history of judicially required or administratively ordered antipsychotic medication while in confinement.").²

¶ 14 An order to involuntarily administer antipsychotic medication as part of B.M.’s prior medical history may have weight in future commitment orders. See RCW 71.05.012. Because each order to administer antipsychotic medication may have collateral consequences in future proceedings, this appeal is not moot even though B.M.’s order has expired. Thus, we exercise our discretion and consider the issues raised.

II. COMPELLING STATE INTEREST

¶ 15 B.M. argues that the commissioner lacked a constitutionally compelling state interest when he authorized the State to involuntarily administer antipsychotic medication. We agree with the State that there is a compelling state interest that justifies the involuntary administration of antipsychotics.

A. PRINCIPLES OF LAW

¶ 16 The Supreme Court has held that a person "possesses a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs under the Due Process Clause of the Fourteenth Amendment." Washington v. Harper , 494 U.S. 210, 221-22, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990).³ The involuntary administration of medication can also interfere with a person’s right to privacy and right to produce ideas. State v. Hernandez-Ramirez , 129 Wash. App. 504, 510, 119 P.3d 880 (2005) ; see also State v. Farmer , 116 Wash.2d 414, 429, 805 P.2d 200, 812 P.2d 858 (1991) ("We recognize a similar right to privacy to emanate from the specific guaranties of the Bill of Rights, from the language of the First, Fourth, Fifth, Ninth and Fourteenth Amendments, as well as from article I, section 7 of the Washington Constitution.").⁴ The involuntary administration of antipsychotic drugs implicates the First Amendment because "of their potential impact on an individual’s ability to think and communicate." State v. Adams , 77 Wash. App. 50, 56, 888 P.2d 1207 (1995). However, these protections are not absolute. Adams , 77 Wash. App. at 56, 888 P.2d 1207.

¶ 17 Involuntarily committed individuals have the right to refuse the administration of antipsychotic medication. RCW 71.05.217(7). However, a court may order the administration of antipsychotic medication if

the petitioning party proves by clear, cogent, and convincing evidence that [ (1) ] there exists a compelling state interest that justifies overriding the patient’s lack of

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