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In re Commitment of M.E.

Court of Appeals of Indiana

November 23, 2016

In the Matter of the Commitment of M.E., Appellant-Respondent,
Department of Veterans Affairs, Appellee-Petitioner

         Appeal 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 Indianapolis, Indiana.

          Baker, Judge.

         [¶1] 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.


         [¶2] 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 police.[2]

         [¶3] 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.

         [¶4] 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 waiver provided:

         [¶5] 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.

         Appellant's App. Vol. 2 p. 26.

         [¶6] 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.

         [¶7] 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.

         [¶8] 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.

         [¶9] 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 ...

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