from the Grant Circuit Court The Honorable Mark E. Spitzer,
Judge Trial Court Cause No. 27C01-9009-MH-567
ATTORNEY FOR APPELLANT Joel M. Schumm Appellate Clinic Robert
H. McKinney School of Law Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE Josh J. Minkler United States Attorney
Danielle Kalivoda Special Assistant United States Attorney
The Veterans Affairs (VA) Hospital filed a petition to
involuntarily commit M.E. by way of forcible medication after
M.E. was brought there by local police. The trial court
issued an Order of Regular Commitment, committing M.E. to the
hospital until discharged, and granted an order to medicate
M.E. unless he did not substantially benefit from the
medications. M.E. now appeals his involuntary commitment.
Finding that M.E. did not receive appropriate notice, that
his waiver was invalid, and that the VA did not carry its
burden of proof with respect to the elements of dangerousness
and grave disability, we reverse and remand with instructions
to vacate the order of involuntary commitment.
M.E. is an army veteran who lives in Marion and has a
well-established diagnosis of paranoid schizophrenia. On
March 31, 2016, M.E. was brought to the VA Hospital by the
On April 4, 2016, the Department of Veterans Affairs Northern
Indiana Health Care System (NIHCS) filed an Application for
Emergency Detention of M.E. with the trial court. That same
day, the trial court approved the emergency detention.
On April 6, 2016, the NIHCS filed multiple documents with the
trial court, including a Petition for Regular Commitment with
a Physician's Statement attached. The VA did not serve
these documents on M.E. or his counsel. Dr. Masood Khan
completed the Physician's Statement preprinted form,
indicating that M.E. was in need of custody, care, or
treatment in an appropriate facility; that commitment would
not be necessary if M.E. was taking medication for his
condition; and that M.E. cannot be relied upon to take
medication as prescribed. On April 7, 2016, the trial court
issued a Commitment Hearing Order, scheduling a hearing for
April 12, 2016, a Notice of Rights and Procedures, and a
Mental Illness Summons. The Sheriff was ordered to serve
these documents on M.E. Also on April 7, 2016, M.E., who was
still being involuntarily detained at the hospital, signed a
Waiver of Right to be Present at Commitment Hearing. The
I waive my right to be present at the hearing set for 1:30
O'clock p.m. on 4/12/2016. I understand that, if I fail
to appear at the hearing, I lose this opportunity to contest
my commitment unless my representative contests the matter on
my behalf. I wish to be represented by: ___at the hearing.
This waiver is given voluntarily. No person has encouraged or
pressured me to sign this waiver.
App. Vol. 2 p. 26.
M.E.'s counsel learned of the proceedings on April 8 when
counsel for the VA called him. M.E.'s counsel had to ask
for all of the documents to be sent to him. After speaking
with M.E., M.E.'s counsel filed a motion to continue the
hearing. His request was granted, and on April 20, 2016, the
hearing took place. Meanwhile, on April 12, 2016, M.E. was
discharged from the VA hospital.
At the hearing, Dr. Masood Khan, a staff inpatient
psychiatrist at the hospital, was the VA's sole witness.
Dr. Khan testified that when M.E. arrived at the acute mental
health unit, M.E. was swearing loudly, presenting with
disorganized thoughts and behavior, acting paranoid, and
initially refusing medications. According to Dr. Khan, the
commitment order was necessary because "the long history
of non-compliance, is primary [sic] the issue, that's why
the order is being questioned." Tr. p. 6. Dr. Khan
testified that schizophrenia is categorized by delusions and
hallucinations, and that when M.E. is in his delusional
state, he thinks that people are discriminating against him
because he is Black; when he is hallucinating, he responds
loudly to unseen others and makes physical gestures. When
asked to explain the nature of M.E.'s yelling or
purported threats, Dr. Khan testified that M.E. yelled,
"these white bitches get away from me. You did this to
me, you did that to me." Id. at 15. Dr. Khan
testified that M.E. has a long history of marijuana use,
which will, in some cases, exacerbate schizophrenia.
Dr. Khan further testified that prior to the instant
admission, M.E. had been admitted to the acute mental health
unit of the VA Hospital in Marion at least thirty-one times.
He testified that when M.E. was part of the VA program for
mental health intensive case management, he was compliant
with his medication and was free of symptoms. Dr. Khan said
that "[t]here has been no physical [aggression] from
what I am remembering from the records, " id.
at 10, and that the most recent time that M.E. was restrained
was July 2013. Dr. Khan testified that although M.E. showed
up for his appointment on April 19, 2016, he declined the
medication. Dr. Khan recommended a treatment plan that was a
long-acting injectable. He testified that M.E. is an ideal
candidate for this medication because he does not exhibit
side effects from it and his "presentation turns around
180 degrees." Id. at 12.
M.E. testified on his own behalf. He testified that he did
not know why he was taken to the hospital: "I got out
there and they wouldn't tell me, they never told me
anything. To this day I still don't know what was said
that I did to except for what" he was told by counsel.
Id. at 19. He stated that he wears an allergy
bracelet for the medication that he was forced to take, and
that he suffers side effects from it, including kidney and
bladder problems. He testified that he lives by himself in an
apartment, pays rent for his apartment every month, eats
regularly, and dresses himself. He gets along well with his
landlord. He said that he gets loud sometimes because
"my voice does accelerate." Id. at 20. He
testified that one white patient "swore up and down and
he went home" and another "threw his tray on ...