                                    NO.    82-504

                 I N THE   SUPREME C O U R T OF THE STATE OF MONTANA

                                           1983

                                                               -
I N THE MATTER OF           ,-
                             T

                                          Respondent.




Appeal   from:     D i s t r i c t Court of the Thirteenth J u d i c i a l D i s t r i c t ,
                   I n and f o r t h e County o f Yellowstone
                   Honorable William J. Speare, Judge p r e s i d i n g .

Counsel o f   Record:

                 For Appellant:

                     T e r r y L.   Seiffert,      Billings,        Montana

                 For Respondent:

                     Harold F.       Hanser,      County A t t o r n e y ,    Billings,     Montana




                                       S u b m i t t e d on b r i e f s :   February 3,     1983

                                                           Decided:         June 3 0 , 1 9 8 3


Filed:
         3m 3 0 7983
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
        Respondent R.T. appeals from a commitment order entered
in    the    Thirteenth   Judicial    District     Court,   Yellowstone
County.
      The sole issue is whether there was sufficient evidence
to find that respondent was "seriously mentally ill" under
section 53-21-102(14), MCA.          We     find the evidence to be
legally insufficient and vacate the commitment order.
      On October 7, 1982 the Yellowstone County Attorney filed
a    petition    for   commitment    with    the   Yellowstone   County
District Court.        The allegations contained in the petition
were based on a letter from a psychiatric nurse from the
South Central Montana Regional Mental Health Center and a
"Request for Commitment" submitted to the county attorney by
R.T.'s sisters, both of which were filed in conjunction with
the commitment petition.
      The petition alleges that R.T. is a long term patient at
the South Central Montana Regional Mental Health Center; that
"he is very paranoid and believes that everything - food and
water    -   is poisoned;" that he only eats chicken soup from a
can and drinks tea because of his delusion that everything is
poisoned; that he refuses to take his medication for his
mental condition; that he is very hostile and suspicious; and
that he is unable to care for himself and protect his health
and safety.
      The district court found probable cause to believe R.T.
was seriously mentally ill and that same day issued orders
for his examination and detention pending hearing.
      A combined adjudicatory and dispositional hearing was
held before Judge William Speare the following day.                Dr.
Thomas Van Dyk, a psychiatrist who had examined R.T.                the
previous day and treated R.T.              for the preceding five years,
testified.      On the basis of the testimony, Judge Speare found
R.T.    to be seriously mentally                ill as defined in Section
53-21-102, MCA           and ordered him committed to Warm Springs
State Hospital for a period not to exceed three months.
        For the purposes of hearing before the trial court and
appeal to this court, respondent concedes that he suffers
from a mental disorder, specifically paranoid schizophrenia,
which is evidenced in part by his belief that his food is
poisoned.       However, respondent contests the sufficiency of
the     evidence    to     establish      that his mental       disorder has
deprived him of the ability to protect his life or health.

        Section 53-21-127(2), MCA provides for the involuntary
commitment of persons who have been found to be "seriously
mentally ill."       Section 53-21-102(14), MCA defines "seriously
mentally ill" as meaning "suffering from a mental disorder
which has resulted 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. "
        The standard of proof required in involuntary commitment
proceedings is statutorily bifurcated:                    (1) with respect to
physical facts or evidence, there must be proof beyond a
reasonable doubt; and (2) as to all other matters, including
the existence of a mental disorder, there must be clear and
convincing      evidence.           In    the    Matter    of   N.B.    (19801,
       Mont     ,   620 P.2d     1228, 37 St.Rep.           2031, construing
Section 53-21-126(2), MCA, in light of Addington v. Texas
(1979), 441 US 418, 99 S.Ct 1804, 60 L.Ed.2d 323.
       During      the    October    8,    1982    hearing,     Dr.    Van    Dyk
testified     that       respondent was         seriously mentally      ill    as
defined by Montana law.             Such testimony is permitted under
Section 53-21-126(4), MCA, but its sufficiency is dependent
on accompanying evidence, from either a professional person
or someone else, that            (1) the person is suffering from a
mental disorder, and (2) the mental disorder has deprived the
person of the ability to protect his life or health.
     Respondent maintains            Dr.   Van       Dyk's   conclusion,      and
therefore       the     district     court's         finding,    is     legally
insufficient because the record is devoid of any evidence
that respondent was unable to protect his life or health -
                                                         at
that time.
- -               Respondent contends that the definition of
"seriously mentally ill" does not provide for, nor include,
imminent or prospective inability to protect one's life or
health.   Respondent contends that under Montana law he cannot
be   deprived     of    his   liberty      on    the    basis    of    such   an
eventuality.
     We agree.        The plain meaning of the language employed in
the statutory definition of "seriously mentally ill" does not
encompass mental disorders which pose an imminent threat of
depriving a person of the ability to protect his life or
health.      We       construe     the   relevant      portion    of    Section
53-21-104(14),        MCA,    to    require      a    finding    of    existing
conditions which evince that an individual - unable to
                                           is
protect his life or health.
     Because the testimony before the trial court does not
clearly   and     convincingly       establish       that at     the   time of
hearing respondent was unable to protect his life or health,
it is insufficient as a matter of law.
     At the time of hearing respondent was residing in a
hotel in Laurel, Montana, living on his monthly disability
income, and eating at the cafe in the hotel.                      Despite the
fact Dr. Van Dyk testified respondent did not eat "properly,"
he did not further elaborate on facts which would support his
conclusion that respondent was unable to protect his life or
health.
       Dr. Van Dyk was twice asked whether respondent was able
to care      for himself.         The gist of one answer was that
respondent would be better off in another situation and that
Warm Springs was the only place that would take him.                  Dr. Van
Dyk's second response was only that respondent would "take
worse and worse care of himself" if the present situation
were    allowed      to   continue.         Referring     to   respondent's
historical tendency to deteriorate after being released from
Warm Springs, Dr. Van Dyk candidly admitted that by                         the
commitment proceeding, they were                  "trying to do something
about it before it gets bad this time."
       As    to   respondent's existing           condition, Dr.      Van   Dyk
testified that respondent had not been drinking (drinking
aggravates his        paranoia);       he   did    not   manifest     suicidal
gestures;     upon    physical     examination, he         appeared    to   be
"normal," though lacking teeth, well-nourished and attending
to his personal hygiene.
       Respondent testified that he lived at the hotel because
it was "the most reasonable place [he] could get in town."
He said he got "along okay" when asked if he was eating
properly and that he was able to take care of his personal
hygiene needs, although he admitted he could do better.
       The   remainder     of    the   testimony      regarded   the    least
restrictive alternatives suitable for treating R.T.
       The evidence simply does not clearly and convincingly
prove that respondent's existing condition was such that his
mental disorder had deprived him of the ability to protect
his life or health.
       We concur in the sentiments expressed by the Arizona
Court   of    Appeals     in    construing a        statute which     defined
"gravely     disabled,"   for   the   purposes   of   involuntary
commitment, to mean a condition in which a person is unable
to provide for his basic personal needs for food, clothing
and shelter as a result of a mental disorder.          The court
said:
    "The statutory definition of 'gravely disabled' is
    limited to persons who are incapable of providing
    for their basic survival needs because of a mental
    disorder. As long as appellant can provide himself
    with adequate food, clothing and shelter, he does
    not come within that definition, despite the
    likelihood that he will decompensate, give away his
    money, and become dependent on social agencies. It
    is one thing to commit an individual who cannot
    function sufficiently to supply basic survival
    needs, and another to commit an individual who
    merely 'chooses to live under conditions that most
    of society would conclude to be substandard       ...
    (Citation omitted. ) "
Pima County v. Kaplan (Ariz. App. 1980) 124 Ariz. 510, 605


    The commitment order is h



We concur:



 ?k-4Ld%4
Chief Justice




Justices
Mr. Justice Fred J. Weber dissents as follows:
     I respectfully disagree with the essential conclusion of
the majority opinion that the evidence does not clearly and
convincingly prove that the respondent's existing condition
was such that his mental disorder had deprived him of the
ability to protect his life or health.
     The petition alleged that R. T.         refuses to take his
medication for his mental condition.        Dr. Van Dyk, who had
treated R. T. for five years testified there was no way to
keep R. T. taking his medication when he lives by himself.
In response to questions as to the form of medication, he
described it.   Counsel then asked if it would be possible for
a public health nurse to check in once a day to make sure he
takes his medication, and Dr. Van Dyk pointed out he had not
been able to get that done because they would only come in
once a week and he again stated that when R. T. is at own
place, there is no way to get him to do anything he doesn't
want to do.     This is confirmed by R. T. who testified as
follows:
     "Q. When you are at home alone, are you willing to
     take your medication?
     "A.    I do better without it.
     "Q.  Consequently, even if the doctor recommends
     it, you prefer not to take it, is that correct?
     "A. Right. "
This uncontradicted evidence establishes that R.         T. does
refuse to    take his medicine and      therefore is unable to
protect his health by the taking of the necessary medication.
    The majority opinion also mentions that Dr. Van Dyk had
testified   that R.   T.   had   not been   drinking.   (Drinking
aggravates his paranoia.)        The substance of Dr. Van Dyk's
testimony was that R. T. had not been       drinking at the time
he saw him at the hospital approximately five days before.
However, the doctor pointed out that R. T. was drinking, by
his own admission, after he had left the state hospital at
Warm Springs where he had been sent by the doctor on a
voluntary basis.
     With regard to the place where he recommended treatment,
Dr. Van Dyk stated:
     "Q. Consequently, do you feel that the respondent
     is able to care for his own needs?
     "A. I do not feel he is.      We have tried him at
     one of our mental health center group homes, and
     they were unable to tolerate him. I've been unable
     to get other nursing homes to take him. I sent him
     to Warm Springs State Hospital on a voluntary
     basis, and he only stayed a few days; and that's
     the reason for this proceeding at present, because
     - has
     he - gotten worse again.
     "Q.   Doctor, what would be the least restrictive
     treatment facility available for the respondent?
     "A. I believe the State Hospital at Warm Springs
     would be, because we've not been able to find any
     other facility to take him and keep him."
     (emphasis added)
Dr. Van Dyk pointed out that a foster home would not tolerate
R. T. because of his drinking and that a group home also was
unable to tolerate it and that he had been unable to find a
nursing home to take care of him.
     While I agree with the necessity for protecting a person
from involuntary commitment, I believe there is both clear
and convincing evidence of the inability of R. T. to protect
his health.   While the testimony may not be a model of proof,
it is important to keep in mind      that Dr. Van Dyk is a
psychiatrist who has attended R. T. for five years, and there
was no attempt to submit information to rebut his testimony.
This is not a suspect case in which the circumstances suggest
an inadequate examination or insufficient consideration of R.
T. ' s problem.    The record establishes that the treating
psychiatrist had attempted a voluntary commitment at Warn
Springs which was unsuccessful and has been unable to find a
foster home, group home or nursing home which could take him,
particularly   because   of   his   drinking   problem   and   its

aggravation of his mental condition.
     I would affirm the District Court.




We join   in the foregoing dissent of Mr.       J u s H r Fred J.
Weber.
