In Re Doe

78 P.3d 341 DOE,

In the Matter of Jane

Respondent/Subject-

Appellant.

Nos. 23806. Appeals

Intermediate Court Hawai'i.

Sept. Goodness,

Cindy Deputy A.L. Public De- fender, respondent/sub- State Hawaii for ject-appellant. Herrera, Deputy Attorney C.

Julio Gener- al, petitioner-appellee State of Hawaii for (Andrea Department of Armitage, Health J. Goss, Jay Mary Magnier, Depu- K. Anne General, ty Attorneys State of Hawaii on the briefs).

BURNS, C.J., WATANABE, J.; J., FOLEY, concurring separately. Opinion WATANABE, the Court J. appeals1 Respon- these consolidated (Doe) dent/Subject Appellant Jane Doe chal- lenges Family two orders entered (No. they appeals parties 1. On June the two cause involved tire same and similar 23806) by Respondent/Subject Ap- and No. filed issues. (Doe) pellant Jane Doe were consolidated be-

529 (the court), paranoia also to a First others. Doe’s has led Court of the Circuit committing involuntarily neglect, her to the Hawai'i history poor and self-eare (HSH) ninety- Hospital State successive eating often not out of fear she Doe day periods, petitions by upon filed Petition- “poisoned.” increas- would be Due to Doe’s Health, Appellee Department of er State behavior, parents ingly paranoid Doe’s and (the State) pursuant Hawaii Re- Hawai'i brother, appointed have been as the co- who (HRS) (1993).2 chapter 334 vised Statutes person guardians (Co-guardians), of Doe’s (1) Specifically, appeals from Find- Doe the: longer able to for Doe in their are no care ings Involuntary Hospitaliza- and Order They supported have home. therefore by Judge Marilyn tion entered Carlsmith petitions hospitalize State’s successive Doe Carlsmith) 2000(0rder 1); 19, (Judge on June involuntarily to her the medi- and administer (2) Findings Involuntary and and Order of they get better. cations believe she needs to Hospitalization by Judge R. entered James 334, the statuto- chapter Pursuant to HRS Aiona) Aiona, 3, (Judge 2000 on October Jr. ry involuntary hospitalization criteria are (Order 2). as follows: question no suffers from There is Involuntary hospitalization criteria. a chronic and serious mental illness. She may psychiat- person A be committed to diagnosed has as suffering from schizo- been facility involuntary hospitalization, ric phrenia, type, as paranoid well as schizoaffec- court finds: disorder, type, history bipolar tive and has a delusions; paranoid, persecutory of: re- (1) person mentally ill That the is stimuli, by sponding to internal as manifested abuse; suffering from substance herself, engag- talking gesturing, and (2) imminently That the dan- behaviors; ing purposeless in disturbed others, gravely gerous to self sleep; agitation; disorganized psychomotor ill; obviously disabled or is and rambling speech; insight; thinking; lack of That the is in of care or need poor judgment. apparently While she treatment, both, and there no past, physically has not violent been through suitable available alternative racist, inflammatory she directs loud often existing programs facilities faces, others, often in them remarks than which would less restrictive provoke prompting will concerns she hospitalization. physical against During pre- retaliation her. halfway stays vious institutions and mental added). (1993) (emphasis § 334-60.2 HRS houses, angry words have con- Doe’s led The first criterion must be established patients with other and staff. frontations standard, “beyond a reasonable doubt” third must be estab- criteria the second Although medication has been shown convincing Doe, “clear evidence” help any voluntarily, lished refuses take 334-60.50) (Supp.2002).3 § HRS partly paranoia and mistrust standard. due to her 2001, 6, Accordingly, appeal February applied Appellee De- No. 23806. 2. On Petitioner Health, State) (the appeal partment State of No. 23806 is moot. Hawai'i we conclude appeal filed to dismiss No. 23534 as have reached the same conclusion a motion Other courts B., moot, See, discharged Stephanie e.g., grounds that Doe In re had been situations. similar Walker, (R.I.2003); By Hospital. State an order v. from the Hawai'i 826 A.2d 985 State 2001, (1998); February Supreme Wash.App. State the Hawai'i 967 P.2d 1289 ex. dated motion, Rudloff, presumably be- v. W.Va. 582 S.E.2d Court denied the State’s rel. Shifflet (2003). affecting appeal presented questions cause the repetition, public capable interest that (I-IRS) 334-60.50) 3. Hawaii Revised Statutes Trucking yet evading review. See Co. full Okada provides, part: (Supp.2002) in relevant Supply, v. Water 99 Hawai'i Board of (2002). 53 P.3d for involun- If tary court finds that the criteria tire argument hospitalization 334-60- parties under section raised mootness also above, 2.2(1) beyond met reasonable doubt appeal has been No. 23806. As noted briefs for already 334- argument the criteria under sections this been dismissed 60.2(2) 334-60.2(3) bymet appeal have been Supreme Court No. 23534. Hawai'i evidence, convincing the court presented in the two consoli- clear Because the issues similar, any police an order to officer deliver appeals are result should issue dated the same In 1996 and Doe received involuntary hospi- treatment. petitions for Doe’s In its Kalihi- follow-up outpatient treatment appeals, that underlie these talization Center; Community Mental Health Palama that Doe: claimed State however, to take medication she refused suffering mentally ill or person who is is a her, progres- paranoid behavior became abuse, imminently and is from substance refused, example, to sively She for worse. substantially dangerous to or oth- self prepared at because she food home eat treatment, or or and is need of care ers being poisoned. thought the food was both, alterna- and that there is no suitable existing through facilities tive available November Doe was arrested On programs which would be less restric- Trespass in the charged with Criminal thereby being hospitalization, than tive abusively Degree loudly and First after she 334, Hawaii purview chapter within the antagonized parents her and refused leave Statutes, amended, as and as de- Revised requested to do so. Be them home when by law. fined arresting police officer cause she bit the added.) words, In other as to the (Emphasis arrest, charged with Doe was also resisted criterion, statutory the State focused second police resisting arrest. assault of a officer and or dangerousness to self on Doe’s “imminent latex, days Two Doe was sent to the Women’s “gravely was and not on whether Doe others” where, Facility, upon psychiat Correctional obviously ... ill[.]”4 disabled evaluation, to be unfit ric she determined proceed trial. challenge appeal, not Doe does On family findings that she met the first court’s 6, 1999, January was admitted to On Doe involuntary hospitaliza- third criteria However, for treatment and care. she HSH argues that she was unconstitu- tion. Doe gained fitness. refused treatment and never tionally was insuf- hospitalized because there charges against Consequently, the criminal imminently that she was ficient evidence 29,1999. April dropped on her were asserts dangerous to herself or others. Doe family court’s orders were based on that the behavior,” i.e., aggres- “antisocial

mere PROCEDURAL HISTORY remarks, consti- racist and such remarks sive Proceeding Family A. FC-M No. for which she protected speech free tuted involuntarily hospitalized. could not be 99-om 1 and 2. We reverse Orders 99-0434, July 1999 in No. On FC-M Involuntary filed a Petition for State Hospitalization of Doe BACKGROUND (Petition 1). 1 was a Attached to Petition graduate magna, cum laude Doe is Physician signed by staff HSH Certificate University grappled who has Chaminade (Dr. Henry E. psychiatrist Dr. Thomas Hen- years. since her teen with mental illness ry), who certified that he had examined Doe old, years was thirteen When she July at 9:00 a.m. and had reason on depression. In treated for December to believe that she was: Queen’s was admitted to Medical Center behavior, ... ... [a]s ill manifested (Queen’s) exhibiting bizarre after Appears paranoid, persecutory refrigerator delusions. including placing fish from the Sleep responding to internal stimuli. August Doe was into a mailbox. Psychomotor Queen’s psychiatric agitation. Dis- hospitalized at disturbance. again involuntarily seeking hospital- facility agreed subject admitted that to a that has the admit the involuntary Doe, subject patient, as Doe’s ize the State focused on imminent subject already patient psychiat- in a if the dangerousness to self or others. and substantial facility, facility to retain the ric authorize tire to establish that Doe was The State did not seek ninety period patient treatment for a "gravely "obviously ill” because of disabled” or days discharged. unless sooner involuntary hospitalization such concerns that court, grounds pass not constitutional muster. would arguments During oral before this attorney general representing deputy the State Henry “immi- organized thinking. Rambling speech. Dr. also stated that Doe was [sic][;] nently substantially dangerous” insight. judgement to her- No Poor

self, acts, attempts or [a]s manifested such imminently substantially dangerous following: Incites threats others ... persons self ... ... ... [and] other anger & assaultive behaviors towards self. acts, attempts manifested such [a]s Intrusive, peer. Racial slurs. Pushed following: anger, threats as the incites as- respect does not boundaries. peers, pushed peer, saultive behaviors in Henry Finally, Dr. that Doe was “in certified slurs, intrusive, racial makes does re- treatment, need of care and there and/or boundaries[;] spect through no exist- [was] alternative available ing programs which facilities and would be treatment, ... in need of care and and/or hospitalization” less than and that restrictive through there is no alternative available capable realizing making Doe was “not and existing programs facilities and ... respect a rational decision with to her hospitaliza- would be less restrictive than need for treatment.” ¡ tion; 15, 1999, also a On October the State filed capable realizing making ... not and a Authorizing Motion for Order the Involun- respect with rational decision to his/her Medication, tary seeking Administration of need for treatment. authority involuntarily to administer medi- court, July family Judge On cations, medications, including psychiatric Ramirez-Uy presiding, appointed Lillian Jer- involuntarily laboratory administer stud- Wilson, ry Esquire guardian I. as the ad ies, clinically necessary, A pro- to Doe. (the GAL) for litem Doe.5 posed plan prepared by treatment for Doe court, 29, 1999, July Judge On Henry Dr. was attached to the motion. Fong (Judge Fong) presiding, Peter entered describing In Doe’s clinical status that Involuntary Findings Hospital- Order plan prompted proposed for treatment granted ization that Petition and ordered Doe, stated, Henry part: Dr. Doe to be retained at HSH for “care and/or During hospitalization this current she has placement in an treatment until alternative observation, and has been under constant facility period days, for not to exceed 90 on, placed been fifteen minute checks discharged, ... unless sooner from the ter- protection around the clock self mination date of the current commitment loud, disruptive, has [sic]. other She been 27,1999.” July an- provokes and confrontational. She 15, 1999, filed a On October the State gers peers daily, using racial slurs. She Repetition Involuntary Hospitalization express- displays paranoid behaviors. She (Petition hospitalization” “to continue [Doe’s] by being about monitored vid- es concerns 2). Physician sup- a Certifícate of filed being building eo devices port repetition of the on October computers to at the nurse’s transmitted Henry Dr. certified that he had examined attempted has ob- station. She cover Doe on October and had reason jects monitoring her. To she feels are believe Doe was protect being from monitored she herself windows, mirrors, ill[,] and has at- ... ... has covered [a]s manifested has paranoid, persecutory tempted to bathe the dark. She delusions. Re- pre- perceived food that she sponding to internal stimuli as manifested refused self, not pared by group she does by talking gesturing, purposeless ethnic of, Japanese, Filipino, Portu- Psychomotor agitation. approve Dis- i.e. behaviors. tangential guese, has described sleep. Disorganized, and Samoan. She turbed hospitalization experiment as an on her thought process. Rambling speech. No her “Chings” controlled insight. judgement who are [sic]. Poor Wilson, appointed guardian subsequent Jerry Esquire ad litem. proceedings, I. In all they Japanese Filipino. because married a safety clusion for of self and others after poisons feels that She medications are began provoking peer with female peers tries influence to take During racial peer slurs. the incident the by telling prescrip- medications them that physically despite retaliated and staff at- poisonous. tion medication On [sic] tempts to redirect esca- [Doe] further 5/7/99, causing she knocked a chair over loud, disorganized, lation she remained fall, peer stating she did not want continuing put delusional herself and chair, Japanese sitting threatening in the others risk harm. She able to throw or have thrown books at that regain composure some and was released loud, person, persisted with threaten- from seclusion after two hours. On ing person. remarks towards that 10/4/99, reported it was that [Doe] made a peer reportedly by hitting retaliated [Doe] derogatory peer remark ato who was male peers with a small radio. will taunt prevented by attacking staff from her. derogatory various racial or remarks. Participation in therapeutic other activities 9/8/99, peer On she told a Po- female poor, classes been with minimal to lynesian ancestry, who larger is much than participation. no active She is unable to her, bad, “... you you KPT make look plan discuss rational discharge. She graduated must not have from Kameham- is not to appropriately legal able discuss eha”, again referring peer, to the “... regarding present hospitaliza- issues her faking symptoms. she must be her I don’t tion. participate She has refused to ha psychiatry putting want or psychology me legal pi'oceedings public or woi’k with experimental group an with her. She assigned defenders to her case because she just paid wants to to be in here.” This any, “Japanese did not lawyei’s, want doc- peer angered by was [Doe’s] remarte tors, judge any Filipinos present,” threatening bodily harm. [Doe] will fre- displays courtroom. She minimal in- quently make that statements are sexual in sight' judgment impaired with re- nature. complained She has being of sexu- gards to her illness and needs. has ally She molested while at HSH. com- These non-compliant been plaints recommended no of have basis truth with [Doe] medications and treatment. has dis- being She under constant observation for safe- played ty impaired sleep. Hygiene and concerns. Staff has voiced concerns grooming possible neglected. Report a have history about been of sexual abuse on, 8/10/99, of her noted because comments indicated that [Doe] and behaviors has (19 (e.g. wearing layers not bathed for two clothing days) several over weeks sanitary and had using napkins several worn the same clothes at for over a once menses). even when not on week. her Because her malodorous condi- She made tion, peers comments during group to a staff and staff female were unable to toler- activity, you get being presence. “oh I let on ... ate in her off that has had to She you your get orgasms separate eat in giving classes room so as not to offend your ... nipples you peers, endangering her safety. hard talk to further when reportedly 8/9/99, you having orgasm me? Are now?” She assaulted thought peer process disgusted by Her has who was body been described as her foul loose, tangential, Presently, odor. rambling, flighty, she continues to bathe irregularly frequently word salad. At appears times she to be wears the same stimuli, responding talking days. to internal to clothes several herself, appealing hypervigilent, anx- Henry Dr. purposes, then described the side agitated, provocative, ious. Because effects, and antipsy- risks associated with the non-redirectable behaviors she has re- chotic, anticholinergic, and mood stabilizer quired emergency medications for behav- sought medications that he court authoriza- control, as, recently ioral She 8/6/99. tion to to administer Doe. frequently required time out or other manage disruptive 21,1999, behavioral hearing methods On October held 9/16/99, required behaviors. On se- [Doe] Petition and the State’s motion to involun- tarily By forcibly administer medication Doe.6 That shall not be de- [Doe] signed by Judge Fong written order physically tained treatment or 12, 1999, family filed on November court to take medication. forced ordered Doe be retained HSH for comply 5. That fails refuses ... period “care treatment for a and/or order, with this court ie. refuses ninety days.” family to exceed obtain treatment to take and/or refuses involuntary also authorized the administra- medication, prescribed desig- Doe, tion of medication accordance with psychia- outpatient nated treatment clinically required plans. treatment The or- [cjouri, notify orally trist shall so however, provided, der invol- “[b]efore writing, ... and in Mental Health untary medication treatment is undertak- Clerk, Comt,.... Family Law en, treating physician shall first make added.) (Emphases every attempt cooperation [Doe’s] secure Apparently, paragraph 4 of when Doe read permission.” Additionally, the order re- January Order and learned quired “prior involuntary to the adminis- physically she could not forced take medication, tration of intramuscular ... staff medication, stopped taking any. ac- diligence encourage must with due [Doe] to paragraph January cordance with 5 of the prescribed orally[.]” take medication Order, therefore, psychiatrist the ACT January On the State filed a Doe, treating Toshiyuki who was Dr. Shibata Involuntary Outpatient Petition for Treat- (Dr. Shibata), family court informed the law Physician A ment. Certificate was subse- clerk of situation. law Advised quently support petition, filed in this jurisdiction clerk court lacked Henry opined which Dr. that Doe’s condition situation, remedy Dr. Shibata and improved diming the court-ordered treat- parents sought Doe’s then clarification from “capable and that surviving ment Doe was 20, 2000, family January of the the safely community super- the with available Order. family, vision from and others[J” friends On 20, 2000, January When clarification of the 20, 2000, 19, January following January State, forthcoming, Order was not on matter, court, hearing 2000 on the May Petition for In- filed another Judge presiding, Vernon Woo entered Find- voluntary Hospitalization in No. 99- FC-M ings Involuntary Outpatient and Order of (Petition 3). accompanying In an Cer- (the Order), January Treatment (Dr. Physician, tificate of Dr. Lee Baumel finding by convincing clear and evidence Baumel) certified he reason be- “capable surviving safely was of Doe was ill and imminent- lieve community supervision with available of fam- herself, ly substantially dangerous friends, ily, January and others.” The by following: evidenced stated, pertinent part, as fol- Order (in 1. all refuses medications outside lows: hospital) outpatient [Doe] 1. That obtain treatment increasing paranoia 2. period days, for a of 180 from the date discharge January 2000. 3. “racists” delusional ideation re (the Community That [ 2. Assertive Team high agitation 4. level of ACT) designated outpatient ] is as the psych disruptive 5. on unit intrusive psychiatrist treatment who shall be re- wandering Housing 6. off from TRAC sponsible management su- placing risk of harm increased pervision outpatient treat- [Doe’s] poor judgment 7. ... ment. appreciable insight No 8: period 3. That the end of the of treat- may hallucinating? 9. [o]rder, is auto- [Doe] ment under this matically cooperation fully discharged. [the ACT] 10. refuses hearing 6. The are not in the on con- tained record transcripts appeal. parents [Co-guardians] nor Dr. neither he Baumel believed that —but imminently dangerous herself respond authority doesn’t their ei- thereupon others. The State withdrew ther. orally Petition and the GAL moved for an 1, 2000, hearing At a June Petition 3 Emergency Ex Parte Hospital- Petition Carlsmith,7 Carlton, Judge psy-

before Dr. HSH, pursuant ization of toDoe to HRS Queen’s, apparently § (Supp.2002).8 chiatrist at testified that 334-59 transcript hearing parte 7. The from this is not con- tion and treatment. The ex order shall appeal apparently part patient’s tained the record on "due be made a of the clinical record. recording oral, application to a malfunction with the person making device[.]" If the regarding hearing All the,application information is from a application shall reduce the by deputy public Declaration of Counsel writing de- and shall submit the same noon of representing hearing. fender Doe at the day judge the next court to the who issued the parte application oral ex order. The written subject penalties shall be executed to the currently (Supp.2002) provides, 8. HRS 334-59 not, perjury but need be sworn to before a hearing as it did when the on the Petition for notary' public. Hospitalization filed FC-M No. Involuntary (3)Any physician (Petition 3) held, psychologist May licensed who 99-0434 on person has examined a and has reason to be- as follows: lieve the is: Emergency hospitalization. examination and (A) Mentally suffering ill or from substance An, (a)Initiation proceedings. emergency abuse; may admission be initiated as follows: (B) others, Imminently dangerous to self or or is police If a officer has reason to believe that a disabled, ill; gravely obviously or is person ers, imminently dangerous to self or oth (C) treatment;' In need of care or disabled, ill, gravely obviously or is or is may transportation, by direct ambulance or the officer call shall for assistance from the means, psychiat- other suitable to a licensed emergency designated mental health workers facility possi- ric for further evaluation and Upon the director. determination emergency hospitalization. ble A licensed emergency per mental health workers that the may physician administer such treatment as others, imminently dangerous son is to self or medically necessary, person's for the safe disabled, gravely obviously or is or is transportation. may psychologist A licensed transported by shall be ambulance or psychologi- administer such treatment as is means, psychiatric other suitable to a licensed cally necessary. facility possibl for further evaluation and (b) Emergency patient examination. A who eemergency hospitalization. police A officer emergency is delivered for examination and custody transport also take into facility designated by treatment to a the di- any facility designated by any per the director by physi- rector shall be examined a licensed threatening attempting son or suicide. The unnecessary delay, cian without and be application officer shall make tion, observation, for the examina given by good such treatment as is indicated diagnosis person and of the practice. psychiatrist psycholo- medical A or custody. application shall stale or shall gist may' patient diag- further examine the by accompanied be a statement of the circum presence nose the or absence of a mental dis- person stances under which the was taken into order, patient may assess the risk that the be custody and the reasons therefor which shall others, dangerous abled, gravely to self or or is dis- person physician be transmitted with the to a ill, obviously or is and assess whether or psychologist facility. or at the patient hospitalized. not the needs (2) Upon any application written or oral li (c) emergency Release from If examination. physician, attorney, psychologist, censed mem physician performs emergency the examination, who the clergy, pro ber of the health or social service psycholo- fessional, consultation with a any county employee or or state gist applicable, patient concludes that the employment, judge may the course of issue hospitalized, patient need not be the shall be parte orally, an ex order but shall reduce the discharged immediately patient unless the writing order to day the close of the next court charges, under pa- criminal in which case following application, stating die the that custody ,to tient shall be returned to the probable of a law person there is cause believe the abuse, enforcement suffering officer. ill or from substance (d) others, Emergency hospitalization. imminently physi- If the or to self or is disabled, ill, psychologist performs gravely obviously cian or the who or is and in treatment, both, emergency giving examination need of care or or has reason to believe based, findings patient on which the is: conclusion is and (1) Mentally directing police suffering ill or officer or other suitabl from substance e abuse; custody individual take the into (2) others, facility desig Imminently dangerous deliver the the nearest to self or or is disabled, ill; emergency gravely obviously nated the director for examina or is objection counsel, Judge Over the of Doe’s Family Proceeding B. CouH FC-M No. orally granted parte Carlsmith the ex motion. 00-1-CHU 6, 2000, On June the State filed another day, The next the GAL memorialized his Involuntary Hospitalization Petition for by filing oral Application motion a written (Petition 4). petition sup- Doe This Emergency Treatment, Examination and ported by the physicians. certificates of two Judge granted Carlsmith the same (Dr. Taghabi Dr. Bahram Taghabi), who had 5, 2000, day. court, On June treating psychiatrist been Doe’s since Doe’s Judge presiding, Dan T. Kochi entered an emergency admission to on HSH June expedited order that Doe “be administered certified that Doe was prescribed by medication as medical authori- following manifested examples: [Queen’s] at ties or at and that [HSH] Doe ” disorganized thinking, obsessed pending “be held at [HSH] a continued hear- issues, herself, about racist laughs talks to ing of this on matter June 2000[.]” out inappropriately, appears loud to be 7, 2000, On June Doe filed motions to stimuli; responding to internal denies hav- expedited stay vacate the order the ex- ing any any illness need for meds. pedited order for the administration of medi- According Taghabi, to Dr. Doe was immi- cation and for hearing. continued Doe ar- nently substantially dangerous to herself gued expedited that the order violated HRS because her records reveal that she has “re- § 334-59 and right her “constitutional to due cently jump,” threatened to had been wan- process” required because the order that she dering housing, poor from self- be held at pending hearing HSH a continued regal'd eating. Taghabi care Dr. also January despite requirement “gravely stated Doe was disabled or patient HRS 334-59 that a admitted for obviously ill by: [p]oor insight as manifested emergency hospitalization examination and illness, self[-]eare, into poor poor mental eat- forty-eight be released within hours of the ing, wandering Further, housing.” admission, patient’s patient unless the volun- treatment, was “in need of care ... and/or tarily agreed hospitalization. to further there was no through alternative available Doe’s motions were day. denied the same existing programs facilities which would 13, 2000, Judge On June Carlsmith hospitalization[,]” entered be less restrictive than Order Dismissal that “capable dismissed Petition realizing making Doe was prior 3 and confirmed her oral respect order a rational decision with to [her] need hospitalized Queen’s Doe remain until for treatment.” The certificate of the other June physician,9 According was similar. to this treatment, both; (e) In need of care or emergency hospitalization. Release from physician psychologist may during period emergency If time direct patient hospitalization responsible physician hospitalized emergen- that the con- on an patient longer cy cludes patient no meets the basis or cause the to be transferred emergency hospitalization phy- criteria for psychiatric the facility emergency to another for discharge patient. pa- sician shall the If the hospitalization, patient or both. shall charges, patient tient is under criminal the right immediately upon have the admission to custody shall be returned to the of a law en- telephone patient's guardian family the or a event, patient forcement officer. the including reciprocal beneficiary, member a or forty-eight must be released within hours of attorney. patient an adult friend and an If the admission, patient's patient the unless the vol- right, declines to exercise that the staff of the untarily agrees hospitalization, to further or a facility patient shall inform the adult of the proceeding for court-ordered evaluation or right family to waive notification to the includ- both, hospitalization, provided is initiated as ing reciprocal beneficiary, and shall make expires in section 334-60.3. If that time on a patient’s reasonable efforts to ensure that the Saturday, Sunday, holiday, the time for guardian family including reciprocal ben- initiation is extended to the close of the next eficiary, emergency is notified of the admission day. Upon proceedings initiation of the patient’s family including reciprocal but the facility shall be authorized to detain the beneficiary, patient need not be notified if the patient until further order of the court. requests is an adult and that there be no notifi- patient cation. The decipher shall be allowed to confer 9. We are unable to the name of this attorney private. physician an physician's signature. with from the imminently Appears responding to sti- and substan- to be internal physician, Doe was herself, muli; by: tially dangerous laughs inappropriately; as manifested bizarre paranoid; thinking appears denies strangers. In- Intrusive behavior towards refusing having psychiatric illness and flammatory, perjorative comments insight. meds. Poor strangers. Wandering housing, off from eating weight with poor self[-]care and immi- According Taghabi, to Dr. Doe was loss. substantially nently to her- Additionally, gravely disabled or Doe was self, following: “Re- as evidenced by: “[p]oor obviously as manifested ‘jump.’ cently told brother she wanted to self[-]care, poor eating, wandering, impaired Getting with others due to into altercations self[-]protection.” of sense calling them racist names.” Doe was also 8, 2000, Following hearing on June “gravely obviously ill mani- disabled or as court, presiding, family Judge en- Carlsmith by: wandering fested off from board Involuntary Findings and of tered Order history poor and not self[-]care care and Hospitalization, which dismissed Petition eating.” timely filing.” day, for “lack of The next 15, 2000, court, family Judge On June Findings Judge Carlsmith issued Amended presiding, hearing held a on Carlsmith Peti- Involuntary Hospitalization, Order hearing, Taghabi At Dr. tion 5.10 the testified which, dismissing in addition to 4 for Petition suffering ill and from Doe was timely filing, for lack of ordered Doe “held paranoid type.” explained “schizophrenia He up hearing 48 hours from the date “appears responding to inter- that Doe emergency hospitalization pending filing by laughing nal stimuli which is exhibited petition involuntary hospitalization, of a inappropriately, talking mak- to herself and represented by BARRY TAGHAVI Dr. ing remarks that more out of context [sic].” ” talking Doe someone themselves.... 9, 2000, On June Doe filed Petition “thought also had a and was disorder” unable Corpus and of Prohibi- Writ of Habeas Writ any meaningful “to maintain interaction with tion, requesting family that the court release Additionally, “para- people.” other Doe was involuntary hospitalization from and en- people.” noid about races of To treat certain State, GAL, join Co-guardians disorder, Taghabi prescribed Doe’s Dr. circumventing “statutory involuntary “xyprexa (phonetic spelling),” antipsychot- hospitalization procedures by way filing “helps positive ic medication that with the repeated Emergency Ex-parte Applications symptoms psychosis such as hallucinations Hospitalization.” for Examination and Doe’s helps negative and delusions and also 25, 2000, petition July was denied on (sic) affect, symptoms apathy such as blunted court, Judge presid- Richard Perkins for the external environment and ambiva- ing. lence, difficulty making and lack of decisions expression opined that Taghabi affect.” Dr. Proceeding Family No. C. FC-M past reports own state- based Doe’s 00-1-0452 ments, “very there was little chance” proceedings in On June while FC- would take if she medications were ongoing, M No. 00-1-0444 were still Taghabi Dr. was asked HSH. When yet for Involun- filed another Petition State dangerous to whether Doe could be herself (Petition 5). sup- tary Hospitalization In a released, following colloquy en- she were 18, 2000, Dr. porting certificate filed on June sued: Taghabi stated that he had examined Doe on Q. you opinion Taghabi, Dr. do have an June 2000 and reason believe dangerous as manifested whether would be to her- she today? if following: self or others released Family 10. Court of tire First Circuit took 99-0434 and 00-1-0444. judicial related in FC-M Nos. notice of the files Yes, opinion. A. I example, have an For we had a—a master treat- plan and ment she —we invited her to come I think would to her- plan and talk to us about our treatment self based on her current behaviors said, and she looked at -window “I problems ward and also reported that were (indiscernible) don’t .... coining in be- past with her behaviors when she was people cause there are white in there.” hospital. outside of the hospital When she was outside the Q. ‘Cause there are what there? report got that I’ve from her Guardian and people A. “White there. I don’t also from the— (inaudible, want to people” be with white Objection, [DOE’S ATTORNEY]: Hear- voice).... drops the witness say. Then towards the —one of the staff she THE COURT: I’ll overrule. up went to her and said—made racist re- Proceed. marks towards her and she has also done THE report WITNESS: The that I’ve patients. that to other report received is initial her and also from patients And the other have become her Guardian said that she was —she has very know, upset it’s—you it’s enticing provoking been patients other it’s — putting her at risk also the unit so we living point where she was to the where know, you have we have to watch her. they very angry. had become to— I gotten report they And have Q. Is intervening the staff when this— physical have —there has been incidents things happens when this sort of with the altercation. That she had been hit. (indiscernible, simultaneous conversa- tion) streets, walking And also .... she’s out in the

wandering going up off strang- to total (inau- verbally A. She’s redirected calling derogatory ers and —and them rac- dible) .... to do that. That’s about it place signif- ist remarks which could her right now. icant risk. Q. examples Are there other If someone doesn’t understand that she’s you being concerns have about her a dan- they very ill per- could take that ger today? herself she were released to, sonally they know, try you could hurt her. A. Not I can think of. On the ward I’ve seen the same kind of Taghabi Dr. also liv- testified that Doe was getting pa- behavior. She has been other ing twenty-four-hour in a supervised locked upset arousing pa- tients the other HSH, unit at where “she can’t leave the by going up tients to them and call- and — quarters.” setting kept This Doe “from ing them racist remarks. wandering provoking people off and other doing And also she’s been this with the strangers against who retaliate her rac- again part staff also. And this is of her setting ist pre- remarks.” The secure also part obsessive —obsessive her illness being non-compliant vented “from schizophrenia that geared her fear is to- by encouraging medications that she take

wards racist issues. hopefully long enough medications for her to

get insight better and have into her illness Q. compliant going— Has this behavior about and be with medications so that you eventually going up patients about once she is released she will be mentioned compliant with saying derogatory things and staff and medications.” straight right to their face? to— cross-examination, Taghabi On Dr. testi- A. Yes. previ- fied that was not he aware Doe’s Q. changed Has that at all this week? ous doctor had found that Doe was not immi- happened Has that this week? nently dangerous Taghabi Dr. herself. week, happened yes.

A. It expressed this also that had not admitted Doe anyone Regarding about her whereabouts. or “homicidal ideations” “suicidal ideations” remarks, physically the staff or and had not harmed racist Doe’s mother testified Doe’s that patients. The doctor believed Doe any other that she was not aware of actual alterca- “prob- danger it was was a to herself because resulting Upon tions from Doe’s behavior. would result able” that Doe’s racist remarks questioning, Doe’s mother testified: further retaliation, injury. causing bodily Addi- in Q. you actually Have witnessed —ever tionally, he had saying ra- witnessed her —her behaviors that word from mother [Doe’s] received strangers? cial to remarks cottage was at a here at while she [Doe] many A. I with have been her times discharge January in after there [HSH] in although not-no. When she was episode was an where she turned on the cottages she knew the staff and she would living she was and left them burners where make racial remarks. something on. that that has oc- And shopping But I would take her before something that also curred but that’s hospitalization initial Hawaii State her potentially should be noted that could be very public places would she great othersf.] risk for very regarding Japa- make loud remarks Taghabi Dr. admitted that he had not sub- Filipinos nese and when we were areas stantiated whether the incident described very high population two with of those actually had Doe’s mother occurred. Addi- nationalities; Waipahu in the area or tionally, acknowledged that had no he he public, large public shopping centers. qualify special training qualifications society expert him as an on how would react Q. you How did—how did make Finally, Tagha- racist Dr. Doe’s remarks. feel? personally had not ob- bi related he Very I A. uncomfortable. would tell go up patients served Doe to other and make her, “[Doe], please don’t make those kind remarks, testimony racist so his was based quiet. say any- of remarks. Be Don’t provided by on information nurses. thing.” Doe’s mother then testified when Doe ability And level and [Doe’s] retention program was released from HSH to the ACT control her behavior is sometimes about 21, 2000, January placed in an on she manage ten seconds. Sometimes she can emergency supposed “for what was shelter for about ten minutes or fifteen minutes week,” days be a few to a until she could be again. but she would control then lose However, placed community in a home. addition, Doe’s mother testified that Doe got discharge saying “when order posed danger an additional to herself because forcibly that she could not be medicated and eat, past, had she refused based rules[,] read the house she decided she poisoned. a belief that the food was going As not to take more medication.” result, placed in she could not be a commu- When asked would whether Doe be able nity up cottage at a home ended forensic released, go home Doe’s mother grounds. on HSH responded: “No. Her behavior is not such that I it and it would could deal with that on or Doe’s mother related about danger to her of his definite father because April in ‘Aina dropped Doe off problems gotten medical that have worse job sup- Haina for a interview. Doe was year.” explained last over the Doe’s mother posed to catch bus after the interview However, Doe’s father was under medication for go cottage. back to the HSH bus, has the apparently “[Doe] number medical ailments. Doe missed the did re- nobody taking cottage, spent idea that should be medication turn to the the entire quite years ago ... night calling' point without to inform and at one a few Chinatown (Dr. recently testimony Taghabi told her brother that "she 11. The of Dr. Bahrain expressed jump.” Taghabi explained Taghabi) wanted Dr. never that Doe had not "suicidal alleged jump, support threat and there was no ideations” conflicts with his certificate in Doe’s testimony Involuntary hearing Hospitalization at the on Petition 5 about of the Petition for (Petition 5), alleged threat. filed on June stated afforded, i.e., by refusing to given take father] was an antibiotic for [Doe’s away.” chronically making threw it When and [Doe] infection medications living racist, loud, kind would inflamatory asked what situation be [sic] remarks released, up set for Doe she were Doe’s strangers very provoking which are responded: mother likely/probably and which are to cause disability dangerous retaliation]/] We have secured some income payments security for her from social against her and that would be the wishes K. is in of care treat- [Doe] need and/or only thing might help I could think of that ment, by convincing clear and evi- pay a I think rent but don’t she would dence. by good in a situation to live herself. placed L. [Doe] is unable elsewhere State, Following closing arguments by the present is no suitable because there Doe, GAL, family orally court and the involuntary medi- alternative where (1) “substantially that: was dan-

ruled Doe can available cations be administered imminently gerous to herself through existing pro- facilities and in that she has made the —and continues grams which would be less restrictive medicine, by refusing making to take her hospitalization, by than clear' con- uncontrolled, inflammatory, remarks that are vincing evidence. they probable racial situations where it is psy- M. be committed to a [Doe] should certainly will result in assaults that could facility. chiatric injury bodily anything even result and/or (2) that”; than was more serious Doe mental- 21, 2000, On June Doe filed notice ly beyond ill doubt in that reasonable she appeal appeal desig- was from Order This schizophrenia paranoid type; suffered from appeal No. 23534. nated as (3) Doe was need of care and treatment Thereafter, 17, 2000, August on the State evidence; convincing clear and Doe Repetition Involuntary Hospital- filed placed cannot be elsewhere than HSH be- (Petition 6), seeking to ization continue Doe’s cause there was no suitable environment less involuntary hospitalization. In a Certificate hospitalization restrictive than where Doe Physician Repetition, Dr. attached involun- could be administered medications (Dr. Smolinski), expressed Janus Smolinski tarily. mentally ill and immi- his belief that Doe was family court entered On June nently substantially dangerous her- to. 1, ordering Order that Doe be admitted to self, following: as evidenced ninety days. period for a not to exceed HSH accusatoiy making has racial [Doe] been found, family part, in relevant The Phillipinos numer- [sic] comments towards follows: in- day. comments are ous times beyond I. a reason- [Doe] sulting provoking strong reactions doubt, from [Doe] able in that suffers If made these comments from others. Schizophrenia, paranoid-type[.] community, likely be in the she would most period within a short assaulted someone imminently substantially [Doe]

J. physi- of time. she wanted On 8/12/00 self, by dangerous to and con- clear cally fight peer with a verbal alterca- after evidence, vincing recently in that tion. in such a manner as to behaved court, unable, August person is indicate that On hearing Judge presiding, supervision without and the assistance Aiona held others, Dr. that in his satisfy for nour- Petition 6. Smolinski testified the need ishment, care, suffering ill opinion, shelter essential medical disorder, bipolar type. self-protection, probable so that it is schizoaffective death, bodily injury, Dr. was asked whether Doe substantial Smolinski others, fol- dangerous to and the physical or disease herself serious debilitation adequate lowing colloquy will unless treatment ensued: result Smolinski, Q you Dr. opin- Q you do an Do have have more as to details your experience dangerous ion whether would from infor- from the you got hap- mation today? or from staff as to what herself others released pened in that? Yes, A I believe she would. A I all don’t have the details. I don’t Q itAnd would [sic] her- she, story know. But the is that when let’s or self others? remarks, say, somebody made some re- Uh, A to self and others. sponds. Then there will be some verbal Q' your opinion? What is the basis of exchange of verbal communication and she Well, Okay. A very strong she makes get point could to the that she could be- racial remarks and she went and would come assaulted. community up

in the and walk to some- Q So didn’t she back down and walk body ethnicity very of that and make away your from this incident from under- remarks, know, strong you somebody that standing? is—how much she hates and dislikes and my understanding A No. And is that it they that conspiring against her with very protective environment here so that very somebody, loud voice and close to if anything happening hap- like what face, getting literally somebody’s pened on 12th then the staff intervenes likely she would most be assaulted sooner (inaudible) patient and the lo- different or later. cations. Q Why you say do that she would abe Q So the staff prevent intervenes to danger to others? things happening these here? Well, A physical A Yes. there was a—some —a I threatened behavior. don’t know all Q your Okay. In physician certificate of on the you details but unit. something also made —discussed about provide clothing for unable food or object [DOE’S ATTORNEY]: I as to shelter make reasonable decisions re- (inaudible). hearsay garding you explain her care. Could that. Okay. objection— THE COURT: A Yes. That she would be unable to take care of herself. If she would be [THE STATE’S Your ATTORNEY]: dischai’ged, it providing means for—ar- Honor, expert an the witness is and he’s ranging place going to live and then testify hearsay. allowed to as to organizing and shopping way in a that THE COURT: That’s true. something, she could do cook for herself (inaudible). organize a shop And allwe (inaudible) clothing so for herself. objection’s THE COURT: The over- Q why Um-hmm. And ruled. that? (inaudible) A secondary A disorganiza- Q THE [BY ATTORNEY]: STATE’S tion that put she would be unable to basi- you get And how did the information about cally thoughts her together point to the the incident? go she could it would be—the A Just from staff. example, say let’s would be in Q You’re the author of the certificate apartment and organize she would have to physician August that was filed on 21st? thoughts. Okay. I So what do have to A Yes. do? pay I need food so I have to Q Okay. August That was written on (inaudible). requires checkbook And it 16? functioning some executive on a level (inaudible) my she to Okay. August You mentioned in would be unable to there do it. physically fight 12th she wanted with peer after verbal altercation. that the Is cross-examination, On Dr. Smolinski was you’re talking

visit about? questioned August about the details of the Yes, A that’s the one. 12th incident that he about in which testified allegedly physically fight they personal attacks on Doe had wanted to remarks? Are admitted, like, know, you peer. Dr. after for instance like Smolinski examining progress Japanese” in Doe’s F’in or what kind of her and makes statements —state- she opinion that racial could Doe’s remarks en- me, general against statements ments — danger August occurred on herself The (inau- know, you And Chinese. then when following colloquy regarding the incident dible) somebody when she sees she makes ensued: then specific regard a comment to them Q Okay. regarding And that is incident Asian, addressing by start their race. progress it that it Rosemary Calego Doe called as a witness care, far testimony As as the need of the (Calego), “a team leader for the [ACT].” Ca- Again, is clear. if the record bears me

lego testified that if Doe were released from differently on that this the [ACT] leader HSH, getting the ACT would assist her in here did not state that eligi- she would be living independently, finding accustomed to housing any type ble for other of—I live, place managing to and Doe’s say housing should opposed as to care. medication. testify they did that provide She would they whatever services had and that ruled, she family orally The court in relevant eligible was for those services such as part, as follows: monitoring of medication possi- as well as beyond ... I find a reasonable doubt that ble service But housing, referral. as far as suffering is [Doe] from mental illness. testimony there was no that she would be toAs whether or not clear and convinc- eligible placed for that and point at this in ing presented has evidence been to show time if August she were released on ... imminently that she is and substantially year. 31st of this dangerous, I don’t believe that there’s a appeai-s It imminently point time frame on at this in imminent. time that —on I don’t compliance believe there’s a time frame on another concern is the However, past. obviously recent I think if medication and there is a doubt to you use common sense and common no- being whether is done. And this terms, tions towards only these it’s not some- setting point seems to be the at in this thing happened year ago or two time in which that can be monitored years ago but hearing it, the reference at this seeing if having any then uh —if it type that I’ve allowed evidence on is from significant of effect on her delusions of month of June I it was that I and, believe let it not, persecution paranoia why? established, be from the month of June to accordingly And grant peti- so I will recently. period days tion for a of 90 or sooner. There is fine line between racial one’s family On October court en- views and or not it whether is a—what is tered its in which Order being said now is a relation to her mental found, in pertinent part, as follows: it illness. And was testified that com- her ill, beyond [Doe] G is a reason- persecution ments are delusions of doubt, Subject able that the suffers paranoia relating to race.... disorder, bi-polar Schizoaffective it, imminency appears As far as the it type[.] better, getting that her behavior only and that would be from fact

there is no real documentation within imminently substantially H is [Doe] past relating specific others, dangerous month to terms that clear and con- evidence, relating vincing used to race and threats. hearing that at the obviously testimony But had we her [Doe] stated her brother her belief today brother in which Filipino girl she reiterated that his friend and he are confinement, being hospi- years. During reason for fifteen his Don tal. diagnosis repeatedly This confirms the aldson “demanded his re (Delusions lease, claiming mental illness Persecu- he was no tion) one, that, inappropriate ac- hostile that he not rate, Filipinos, again hospital providing tions towards diagnose supposed needed to for his mental illness. treatment illness.” Id. at subsequently 95 S.Ct. 2486. He filed a [Doe] I need care treat- and/or claiming lawsuit under U.S.C. ment, by convincing clear and evidence. hospital staff had members “intention placed [Doe]- J unable elsewhere ally maliciously deprived him of his con present because at there is no suitable right liberty.” stitutional Id. at existing through alternative available S.Ct. 2486. programs facilities and which would be trial The evidence adduced at “demonstrat- hospitalization, by less than restrictive ed, contradiction, without that Donaldson had convincing clear and evidence. posed danger during long no others his psychi- K should be committed to confinement, any point indeed at his facility. atric life.” Id. 95 S.Ct. There was family court then ordered that Doe be no evidence adduced “that Donaldson had involuntarily period committed HSH for a thought likely suicidal or ever been been days. ninety timely not to exceed Doe filed a injury upon inflict Id. himself.” Further- 2 appeal of from on amended notice Order more, requests frequent “Donaldson’s for re- 19, appeal designat- This October 2000. was supported by responsible per- had been lease appeal ed as No. 23806. willing any provide might sons to him care he release!,]” need on and the record showed DISCUSSION despite apparently paranoid that mild his A. The Constitutional Boundaries able, schizophrenia, Donaldson had been both Mentally Civil the III Commitment of commitment, and after his before “earn Supreme The United Court States hospital” living through his own outside the a recognized that “civil the [of commitment job “responsible in hotel administration.” Id. purpose any ill] for constitutes a Finally, that the evidence established Don- deprivation liberty of significant that re simple regime aldson’s “confinement was a of quires process Addington protection.” due care, program a enforced custodial not de- Texas, 1804, 441 60 v. U.S. 99 S.Ct. signed supposed his ill- to alleviate or cure (1979). L.Ed.2d 323 The loss of a civil com 569, at ness.” Id. 95 2486. S.Ct. autonomy justified on of mittee’s the basis jury A returned a Donaldson’s verdict compelling two societal interests: favor, by the Fifth affirmed Cir- legitimate The state has a under interest Appeals, hospital’s cuit of and the su- Court parens patriae providing care powers its appealed. Supreme perintendent The Court to its citizens who are of unable because “[t]he held that fact that state law themselves; emotional disorders care authorized the harm- have confinement authority police the state also has under its mentally ill less does not itself establish a protect community power the from the constitutionally adequate purpose for the dangerous tendencies some who are at 95 2486. confinement.” Id. S.Ct. mentally ill. stated, Additionally, Supreme Court the 99 Id. S.Ct. 1804. original involuntary even if Donaldson’s con- constitutionally permissible, finement Supreme first Court decision dis constitutionally such confinement “could not any civil constitutional restrictions on cuss longer that no continue after basis existed.” proceedings v. commitment was O’Connor The Court reasoned as follows: Donaldson, 45 U.S. S.Ct. (1975). O’Connor, finding re A of ‘mental illness’ alone cannot

L.Ed.2d 396 Donaldson, involuntarily locking person up justify State’s spondent, been him against keeping his will and indefinite- confined a mental institution for almost found, jury upon As- Since simple confinement. ly in custodial fiends. O’Connor, evidence, agent as an ample given a suming that term can be State, Don- knowingly did so confine of the reasonably precise and that content aldson, properly it concluded O’Con- with reason- ‘mentally OFcan be identified Donaldson’s constitutional nor violated accuracy, is still no constitution- there able right to freedom. confining persons involun- such al basis no tarily they one 575-76, are (emphases add- Id. at S.Ct. safely ed). can live freedom. specifically re- The O’Connor raised certain issues are fused decide In a series of 95 S.Ct. Id. in this the facts case: answers, questions and the Su- rhetorical [Tjhere ... now to decide is no reason holding: out its preme Court fleshed may compulsorily con- whether State mentally 01 May confine the the State non-dangerous, mentally ill individu- fine a merely living standard to ensure them a purpose al for of treatment. they enjoy private in the superior to that whether, when, ... We need not decide proper community? That the has a State per- ill procedures, or what providing and assistance to care interest may be confined the State son saying. But goes without the unfortunate which, contemporary grounds under illness does presence mere mental statutes, justify generally advanced preferring disqualify per- involuntary of such a confinement to the an institution. his home comforts of public, prevent injury to son—to Moreover, may arguably while State safety, own survival or [or her] ensure his harm, him from confine a to save her] or cure his illness. [or or to alleviate necessary rarely if ever incarceration did, 573-74, 95 2486. The Court Id. at S.Ct. raising living standards of condition for however, recognize “dangerous conduct” safely in capable surviving free- those self-neglect: gross might include evidence of dom, help or with on them own course, Tucker, if there is no foreseeable v. Of even family or friends. See Shelton suicide, 488-490, 247, self-injury or a is 479, risk of 252- 364 U.S. 81 S.Ct. literally ‘dangerous physi- if for to himself 253, 231. 5 L.Ed.2d helpless [or cal he she] or other reasons May in the harmless the State fence of either to avoid the hazards freedom solely ill to its citizens from save through own or with [or her] his efforts ways exposure to whose are differ those willing family aid of members the State, might if to ent? One as well ask the friends. unease, all public could incarcerate avoid 9, n. socially Id. at 574 95 S.Ct. physically who are unattractive or public or ani Mere intolerance eccentric. Texas, Addington Subsequently, in v. the constitutionally justify mosity the cannot an “individual’s in- Supreme held that Court physical liberty. deprivation person’s a a civil commitment terest in the outcome of of 15, See, California, e.g., v. 403 U.S. Cohen weight gravity proceeding is of such 24-26, 1780, 1787-1789, 29 91 S.Ct. justify requires to con- process due the state Cincinnati, 284; City v. L.Ed.2d Coates than a by proof more substantial of finement 1689, 1686, 91 29 402 U.S. S.Ct. 441 preponderance of the evidence.” mere York, 214; v. New 394 U.S. L.Ed.2d Street 427, Addington at 99 S.Ct. 1804. The U.S. 592, 1354, 1365-1366, 576, 22 89 S.Ct. “proof beyond a held that the reason- Court 572; Dept. Agricul L.Ed.2d cf. U.S. required in was not of able doubt” standard 534, Moreno, 528, v. 413 U.S. 93 S.Ct. ture “because, given proceedings the uncer- such 2825-2826, 2821, L.Ed.2d 782. 37 diagnosis, may it im- psychiatric of tainties short, cannot meet and constitutionally pose a burden the state In cannot State to thereby an unreasonable barrier nondangerous in- erect without more confine 432, 99 surviving safely treatment.” Id. capable needed medical dividual ivho is of Instead, process guarantees help due the S.Ct. 1804. or with of himself freedom proof of long as as the standard willing responsible members are satisfied applied equal greater might defined, is at than that term prerequi- least to be is a site commitment. convincing the standard. Id. at constitutional clear 431-33, 99 S.Ct. 1804. say Nor can that it was we unreasonable Congress to determine that the insani- States, In v. Jones United U.S. ty acquittal supports of con- inference (1983), 103 S.Ct. L.Ed.2d the tinuing comports illness. It with mental petitioner, “Schizophrenia, who suffered from common sense to conclude that someone paranoid type,” attempting was arrested for whose lead mental illness sufficient to jacket department to from a steal store. him criminal likely to commit a act is to charged attempted petit He was then with remain ill of and in need treatment. The larceny, punishable misdemeanor a max- precise evidentiary insanity force of the year. prison Upon imum term of one his course, acquittal, may vary case insanity, acquittal petitioner reason of the case, but not the Due Process Clause does indefinitely hospi- was committed a mental require Congress to make classifications tal, pursuant to a District of Columbia stat- every that fit individual with same adopted by protect Congress society ute degree of relevance. and rehabilitate insane criminals. Id. at 356 added, (emphasis Id. 363-66 citations and being hospitalized n. 103 S.Ct. 3043. After omitted). footnote, footnotes In a Su- year, than period more one the maximum preme emphasized “dangerous- spent prison could have he he had been equated ness” should not with “violence”: convicted, petitioner sought his release. jewel- To describe the theft watches and determining petitioner that the was not ry ‘non-dangerous’ danger is to confuse released, entitled the United States Larceny usually vio- violence. less Supreme Court concluded: assault, lent than murder but in terms public policy purpose statute question turn We first whether (footnote omitted). is the same as to both.” finding insanity criminal at the trial It also be noted crimes of theft sufficiently probative of mental illness frequently may result violence from the dangerousness justify commitment. escape efforts of criminal to victim guilty by A verdict reason of insani- protect property police appre- or the (i) ty two establishes facts: defendant hend fleeing criminal. an act a crimi- committed that constitutes offense, (ii) (quoting nal committed Id. at n. he the act 103 S.Ct. 3043 O’Beirne, Congress of mental v. 302 F.2d 861 because illness. has Overholser (1961)) (internal findings that quotations determined constitute brackets and these omitted). adequate hospitalizing an basis for the ae- marks quittee dangerous mentally as a ill Louisiana, 71, In 112 Foucha v. 504 U.S. person.... say that We cannot it was un- (1992), 1780, 437 S.Ct. 118 L.Ed.2d the Unit- reasonable and unconstitutional therefore Court, Supreme States in a deci- ed five-four Congress to make this determination. sion, held unconstitutional a Louisiana stat- that in ute allowed the continued confinement person found, a The that has been fact psychiatric hospital insanity aequittee of an a doubt, beyond a reasonable have com- had from his who recovered mental Alness certainly a mitted criminal act indicates dangerous thought but was still to be due Indeed, dangerousness.... this concrete 77-80, personality. an antisocial Id. at 112 generally may per- at least evidence as S.Ct. 1780. any predictions danger- about suasive might petitioner that be made in a civil- in had ousness The Foucha been com- agree being do proceeding. commitment We not mitted to a mental institution after petitioner’s guilty by insanity of suggestion requi- with that the found not reason of. dangerousness by aggravated burglary Ulegal discharge site is not established later, years proof Approximately that a a a firearm. four committed non-vio- against hospital superintendent propeHy. lent crime This Court recommended “violence,” petitioner’s discharge a never has held that however or release after 546 (1) an act” “committed that: the defendant “that there

hospital panel concluded review (2) offense”; since he constituting illness a “criminal no evidence mental had been [petitioner] that of a admission and recommended this act because men- or she committed 74, discharged.” Id. at 112 conditionally Accordingly, “it could be Id. tal illness. hearing, one of the doctors 1780. At a S.Ct. that at time of the properly inferred “probably suffered petitioner that testified verdict, mentally ill was still the defendant but that he drug[-]indueed psychosis from a commit- dangerous and hence could be condition; temporary from the had recovered However, acquittee “the committed ted.” Id. signs psychosis no that he evidenced when he has recovered is entitled release mentally; ‘good shape’ and was neurosis Id. sanity longer dangerous[.]” no his or is however, had, personali- an antisocial that he Jones, 77, (quoting 1780 463 U.S. at S.Ct. that is not a mental disease ty, a condition 3043). 363, Supreme The at 103 S.Ct. 75, at 112 S.Ct. untreatable.” Id. holding the the basis for held that because that he would doctor also testified 1780. The facility psychiatric had dissi- petitioner a [peti- certifying not “feel comfortable i.e., longer mentally pated, was no he danger a to himself would not be tioner] him on longer to hold state was “no entitled petitioner had people” because other at 1780. Addi- that basis.” Id. S.Ct. while altercations” been involved “several justify contin- tionally, could not his the state 75, 112 1780. S.Ct. at the institution. Id. basis of his antisocial on the ued confinement record, trial court concluded On such (1) personality, because: no determination him- dangerous to “[petitioner] was that the pro- in a civil commitment made been him returned and others and ordered self petitioner’s illness ceeding of current mental Id. institution.” the mental (2) [petitioner] “if can no dangerousness; certiorari., granting the United After acquittee insanity longer be held as majority observed Supreme Court States hospital, he is entitled to constitution- mental “[wjhen having person charged with ally procedures adequate to establish guilty found not committed a crime is confinement”; and his grounds for his ... commit insanity, reason of State pro- his substantive due confinement violated Addington satisfying the without prove, rights in that the state did not cess respect to mental illness burden evidence, convincing that he was clear 76, 112 dangerousness.” Id. at S.Ct. ill and but conceded States, 463 U.S. (citing v. United Jones 78-80, (1983)). not ill.12 Id. he was 77 L.Ed.2d 694 103 S.Ct. 1780. justification establishes S.Ct. is that the verdict Therefore, Miller, dangerous. him because the state 933 P.2d v. 84 Hawai'i State (1997), keep Supreme legitimate Court held that the Hawaii to have a reason continues 704-411(4) (1993), places facility, may the bur require HRS him mental it Miller in the insanity acquittee to establish his or den on an eligibility prove for l'elease. his psychiatric from a her fitness to be released facility by preponderance meticulously distin- The Foucha court also evidence, did of the insanity acquittee, guished Foucha from an process. Id. at 933 P.2d at violate due invalidating the Louisiana statute instead distinguished Foucha as follows: 612. The court The Court held the Louisiana statute its face. squarely address the con- ... Foucha did not because, largely for "the basis unconstitutional stitutionality placing proof on the burden of of facility holding psychiatric as an Foucha in a hearing. insanity acquittee at the release the However, disappeared” insanity acquittee when Lou- reading that case indi- a careful of long- acknowledged that Foucha was no isiana tacitly approved Supreme Court cates that the 78, It ill. Id. 112 S.Ct. at 1784. er at instance, procedure. the Court For of such a logically had success- follows that Louisiana dispa- heavily relies on Jones its in Foucha fully argued was still that Foucha insanity acquittees. The rate treatment of case, would did in this Louisiana as the state legiti- long a that so as there is Court stated basis to recommit Fou- have had a sufficient continuing confinement of for the mate basis cha. insanity acquittee insanity acquittee, the Finally, conspicuously a from Foucha is absent differently civilly from the com- be treated provide holding the same that the state must 85, at U.S. at 112 S.Ct. mitted individual. 504 insanity procedures acquittees and case, release alleged the state has In the instant Miller, Foucha, in Fou Given that the issue civil committees. argued unlike is still insanity petition acquitlee's renders cha was suffering a mental illness that from

547 case, Responding argument that a In a more v. Hen- to Hendricks’ recent Kansas dricks, 2072, 346, a finding prerequisite 117 of illness” was 521 U.S. S.Ct. 138 “mental (1997), Supreme 501 for civil and that “mental abnor- L.Ed.2d Court was commitment constitutionality mality equivalent to a ‘mental illness’ upon called to review the of Act, because it is a term coined the Kansas Sexually the Kansas Violent Predator (1994), Legislature, psychiatric rather than seq. § Kan. Ann. Stat. 59-29a01 et (id. 2072, 359, community[,]” at 117 S.Ct. “procedures which established for the civil original), Supreme who, emphasis in persons of commitment due to ‘men- disorder,’ stated: abnormality’ ‘personality tal or a likely engage ‘predatory acts of assertion, Contrary to Hendricks’ the term ” 350, 117 sexual violence.’ Id. at S.Ct. 2072 of talismanic “mental illness” devoid (quoting seq. § Kan. Ann. Stat. 59-29a01 et significance. only “psychiatrists Not do (1994)). Act, abnormali- Under “mental widely disagree frequently on what “ ty” ‘congenital ac- defined as a illness,” constitutes mental Ake v. Okla quired affecting condition the emotional 68, 1087, homa, 81, 470 105 U.S. S.Ct. capacity predisposes per-

volitional 1095, (1985), 84 L.Ed.2d 53 but the Court sexually son to commit in a violent offenses variety expressions itself has used of degree constituting person a such menace to of describe the mental condition those ” 352, safety the health and of Id. at others.’ See, subject properly to civil confinement. (quoting 117 S.Ct. 2072 Kan. Stat. Ann. 425-426, e.g., Addington, supra, at 99 59-29a02(b)). S.Ct., (using at 1808-1810 the terms “emo ill”); “mentally tionally disturbed” and passage, in- After its the Kansas Act was Indiana, 715, 732, 737, 406 Jackson v. U.S. involuntarily Leroy voked to commit Hen- 1845, 1855, 1857-1858, 92 32 L.Ed.2d S.Ct. (Hendricks), long dricks an inmate with a “incompeten (using 435 the terms children, history sexually molesting short- Foucha, U.S., cy” “insanity”); cf. 504 ly before he was scheduled be released (O’CON S.Ct., 88, 112 at 1789-1790 prison. Upon challenge Hendricks’ NOR, J., concurring part concurring process, jeop- his commitment on due double judgment) (acknowledging au State’s ardy, post grounds, and ex the Kansas facto thority to commit a there is when Act, Supreme holding Court invalidated the so”). justification doing “some medical “precommitment of a the Act’s condition Indeed, required ive have never state abnormality’ satisfy did not what ‘mental legislatures adopt any particular no- perceived to be the ‘substantive’ due drafting menclature in civil commitment process requirement involuntary civil Rather, traditionally statutes. we have predicated finding commitment must be defining legislators ” the task terms left 350, 2072 ‘mental illness.’ Id. S.Ct. a, signifi- legal natu/re that have medical Hendricks, 246, (quoting Kan. In re States, 473 cance. Jones v. United Cf. (1996)). P.2d n. [463] U.S. S.Ct. (1983). Supreme The United States Court re n. 77 L.Ed.2d 694 As have, versed, holding procedures consequence, that the followed the States over process years, developed specialized Kansas met substantive due re numerous concepts. quirements “requires mental health that the Act find terms define Often, precisely fit ing dangerousness, links those definitions do not future then employed by finding of a with the the medi- to the existence ‘mental definitions community. legal definitions abnormality’ ‘personality disorder’ that cal difficult, example, impossible, “insanity” “competency,” for makes it if not for the substantially psychiatric vary from them dangerous to control his behavior.” 358, 117 counterparts.... 2072. Id. at S.Ct. release, proof proceeding. per at the release we find the to be standards of Court’s silence approval of the different suasive evidence of its

548 highly dangerous per-

To the extent that the civil civil of commitment commitment statutes we have forth suffering considered set crite- sons severe mental abnormalities.” relating inability 411-12, ria an individual’s Id. at 122 867. S.Ct. On the other dangerousness, hand, control his Act stated, the Kansas Supreme Court the Consti- comparable forth sets criteria and Hen- “permit not tution does commitment of the dricks’ condition doubtless satisfies those type dangerous of sexual offender considered professionals criteria. The health mental in Hendricks without lack-of-control de- diagnosed who evaluated Hendricks him as 412, termination.” Id. at 122 867. S.Ct. suffering pedophilia, a condition the Supreme Court elaborated as follows: psychiatric profession itself as a classifies give phrase did not [W]e “lack of serious mental disorder....3 particularly control” a narrow or technical meaning. recognize And we that in cases 3 course, recognize, psychiatric We of issue, “inability where lack of control at is professionals complete harmony are not in in casting pedophilia, general, paraphilias in as to control behavior” will not demonstra- be Compare "mental illnesses." Brief for Ameri precision. ble It mathematic is Psychiatric can as Association Amicus Curiae 26 enough say proof that there must be of Menninger with Brief al. Foundation et difficulty controlling serious disagreements, behavior. Amici Curiae 22-25. how These ever, setting do not tie the State’s hands in this, light And when viewed in of such fact, bounds of its civil commitment laws. In it features of the case as the nature of the precisely disagreement where such exists psychiatric diagnosis, severity legislatures have been the widest latitude afforded drafting itself, such statutes. Cf. Jones v. United abnormality mental must be suf- 13, States, 3043, 463 U.S. n. 103 S.Ct. distinguish dangerous ficient sexual 3050, 13, (1983). n. 77 L.Ed.2d 694 As we have illness, offender whose serious mental ab- enactments, explained regarding congressional subjects normality, him disorder to civil legislature when act "undertakes to in areas uncertainties, fraught with medical and scientific typi- commitment from the but legislative options especially must be broad cal recidivist an ordinary convicted in crim- legisla courts should be cautious not to rewrite inal case.... S.Ct., 370, 3053(internal Id., at 103 at tion.” omitted). quotation marks and citation recognize We that Hendricks as so read 359-60, provides (emphases precise Id. at 117 S.Ct. 2072 add- less constitutional stan- omitted). ed, citations dard than would those more definite rules parties argued. for which the have But Subsequently, Crane, v. 534 Kansas safeguards the Constitution’s human 122 U.S. 151 S.Ct. L.Ed.2d 856 liberty in the area mental illness and (2002), Supreme Court was asked ahvays the law are not best State Kansas enforced to review the Kansas Su- through precise bright-line rules. For one preme application Court’s of Hendricks to thing, the States retain considerable lee- the civil commitment of Michael Crane way defining the mental abnormalities (Crane), previously convicted sexual offend- personality make disorders that an er who suffered from both exhibitionism and eligible individual commitment.... personality antisocial disorder. The Kansas another, psychiatry, For the science Supreme Court had held could Crane tuhich but not does control ulti- informs civilly committed under the Kansas determinations, legal mate an ever— finding Sexual Predator Act absent that he science, advancing whose distinctions do completely danger- unable to control his precisely not seek to mimr those ous at behavior. Id. S.Ct. law. appeal, Supreme On the United States added, (emphasis Id. at S.Ct. explained Court that Hendricks did not re- omitted). citations quire complete “total or lack of control” on part of a civil summary, committee. Id. In under Su United States (emphases law, original). preme S.Ct. Such “an Court case state cannot consti unworkable,” approach tutionally absolutist the Su- solely confine a based said, preme upon ab- civilly “[i]nsistence antisocial order to com behavior. individual, barring solute lack of control would risk mit there must least clear

549 convincing legislature and evidence the individual the Hawaii enacted “mentally “dangerous.” law, ill” and Unfortu- January compre into effective nately, Supreme provided has not Court chapter relating to hensive new mental any bright-line health, rules as to what constitutes illness, addiction, drug mental “dangerousness,” “mental illness” or radically changed proce alcoholism that country all struggled courts over the have involuntarily committing dures for for care Supreme with these issues. The Court has persons mentally who ill treatment were stated, however, that much deference should requiring hospitalization. to an extent 1967 legislatures be accorded to state to define Haw. Sess. L. Act at 385. Act Under Moreover, these terms. Jones and O’Con- 259, chapter which was codified as HRS nor, “dangerousness” the Court stated that (1968), mentally initial of a ill indi admission equivalent appears not the of It violence. psychiatric facility vidual to a licensed O’Connor, moreover, mentally under that a solely by effectuated of the administrator ill incapable “surviving safely of psychiatric facility or the administrator’s [or herself] freedom himself or with the deputy, upon the certificates two licensed help willing responsible family mem- physicians, emergency or in the ease of may constitutionally bers or Mends” con- admission, physician. on the certificate of one fined. (1968). §§ HRS 334-51 to 334-55 This “medical model” commitment was hailed foregoing With the constitutional back- liberal,” Qui “progressive v. Suzuki drop, we turn to an examination of Ha- (D.Haw. senberry, F.Supp. govern involuntary hospi- waii statutes 1976) (Suzuki “barbaric,” I), less and a more mentally talization of the ill. dealing mentally

rational solution to with the Statutory B. Hmvai'i’s upon Framework primarily since it was “based Involuntary Hospitalization treatment, safety, and rehabilitation of the secondarily upon individuals involved and statutory Hawaii’s framework for involun- public safety and convenience.” Samuel P. tary hospitalization ill Commit, King, Thou Shalt Not 5 Hawai'i century, prompted evolved over the last half (1968). B.J. 46 large part by developments in case law emerging social service models for deal- I, In Suztiki the United States District ing ill in a more humane Court, Judge King (Judge Chief P. Samuel and rational manner. King) presiding, relied O’Connor its Prior progeny Hawaii’s commitment stat- down strike as violative model,” “legal process utes were based on a in which due clause of the Fourteenth Amend- necessary involuntarily a court order ment certain nonconsensual civil commitment hospitalize mentally person requiring statutory ill provisions13 Act 259. enacted Judge King institutional care. Rev. Laws Haw. minimum See also set forth the due (1955). §§ process requirements14 81-19 and 81-21 that must be met in minimum, 13. Specifically, Judge ICing United States District held that at a the fol- Judge King (Judge King) lowing procedural safeguards required Chief P. Samuel held: were nonemergency, connection with the nonconsen- purports § Since [HRS] 334-53 to authorize persons pursuant commitment of to mental sual hospitalization any person nonconsensual health laws: solely ‘mentally because that ill (A) requiring hospitalization,' Adequate prior ... to an extent notice. (B) provision hearing judicial of law is unconstitutional on its face. Prior before a neutral offi- necessarily applies This conclusion also to the cer. (C) emergency right conversion of an commitment ato The to effective assistance of counsel. (D) long-term pursuant right present hearing. commitment The [HRS] to be at the 334-54, (E) patients right § to the transfer between The to cross-examine witnesses and hospitals pursuant § [HRS] 334-71 or from to offer evidence. (F) 334-73(b), pursuant applica- § [HRS] out-of-state Adherence to the rules of evidence and to the authorization set out in ble in criminal [HRS] cases. 334-51(a)(2) (5). (G) right privilege against to assert Quisenberry, F.Supp. v. 1124— self-incrimination. Suzuki I). (D.Haw.1976) (Suzuki (H) beyond Proof a reasonable doubt. (2) 334-60(b)(l)(B) nonemergency, § connection with the noncon- HRS was unconstitu person. of a ill tionally “ambiguous sensual commitment degree as to the of dan jurisdiction Judge King of the retained case gerousness required” to self or others be constitutionality to rale on cura- require finding it “fail[ed] cause of a legislation might tive be enacted. act, attempt recent overt or threat of immi danger nent and substantial before commit legislature responded In to Su- occur[,]” (3) id.; may § ment HRS 334- by enacting I zuki Act 1976 Haw. Sess. 60(b)(4)(G)15 process violated due because it L. at Act which made numerous permitted temporary commitment of an indi chapter provide revisions to HRS 334 to ad- vidual based on evidence rather procedural safeguards sufficient ditional and establish doubt, proof beyond than a reasonable at id. more restrictive substantive criteria for civil (4) 1111; 334-60(b)(4)(G), § 'HRS codified, commitment. As for criteria provided that an tempo individual could be involuntary hospitalization by Act enacted rarily hospitalized refusing participate for 130were as follows: psychiatric in a evaluation to determine (1) person may A Criteria. be committed committed, whether he or she should be un psychiatric facility involuntary to a constitutionally deprived the individual of his hospitalization if the court finds: privilege against or her self-incrimination. (A) person mentally That the ill or Id. at 1112. abuse, suffering from substance II, appeal from On Suzuki the Ninth Cir (B) That [or she] he Appeals cuit Judge King’s Court of affirmed himself or to [or herself] others rulings first and second but concluded that property, and 334-60(b)(4)(G), § by HRS as amended Act (C) [or That he is in she] need care 13Q, unconstitutionally deprive per did not treatment, and there is no and/or privilege against sons of their self-incrimina suitable available alternative tion; additionally, necessary it was not through existing pro- facilities and of Hawaii the State to establish the elements grams which would be less restric- by proof beyond of commitment a reasonable hospitalization. than tive (9th Yuen, doubt. Suzuki v. 617 F.2d 173 60(b)(1976). § sequel HRS In a lawsuit 334— Cir.1980) (Suzuki III) (affirming part, /, Judge King struck down Suzuki as reversing in part, dismissing part provisions by unconstitutional four enacted II). Suzuki Yuen, F.Supp. Act v. 130. Suzuki (D.Haw.1977) (Suzuki II). precisely, legislature More repealed HRS Judge King dangerousness § held that: 334-60 and statutory provi- enacted a new sion, property, a § criterion for commitment under codified 1985 as HRS 334-60.2 and 60(b)(1)(B), § “Involuntary hospitalization HRS was not a constitu entitled criteria.” 334— 188, § tional basis for commitment of an individual L. 1984 Haw. Sess. Act 3 at 371-72. psychiatric facility to a emergen involuntary hospitalization either an The criteria set situation, cy 1110; nonemergency § id. forth in 334-60.2 HRS were identical to (I) physician, may A consideration of less restrictive alterna- ined a licensed he exam- tives. (J) court-appointed physician. ined licensed proceedings A record of the and written If he refuses and there is evidence to sufficient findings of fact. allegations petition believe that the of the (K) Appellate review. (L) Periodic redeterminations of the basis for true, may temporary the court make a order committing facility psychiatric him to a confinement. period days purpose than five more for the I, (1976). F.Supp. at 1127 Suzuki diagnostic of a examination and evaluation. subject’s time, 334-60(b)(4)(G) refusal shall be treated a deni- provided: § 15. At the HRS suffering al he ill or (G) require No individual be found to medi- herein, however, Nothing substance abuse. physician cal treatment unless at least one who privilege against shall limit the individual's personally per- examined him testifies in hearing. testimony may self-incrimination. son This 60(b)(4)(G)(1976) added). subject petition. (emphasis waived subject of the If the HRS 334— petition of the has refused to be exam- repealed the criteria listed in including schizophrenics, HRS whose distinctive 334-60, § except respect that with to the largely illness can be controlled with medi- criterion, “imminently” second cation, the word was but susceptible whose condition is prior added to “dangerous,” pre- the word that, to rather sudden deterioration with- sumably bring to statute line with intervention, virtually out medical cer- Judge King’s ruling in Suzuki II. produce tain to a severe extreme dis- ability in a short time. Your [Conference] 1985, legislature In added a new cate- Committee realizes it is essential to gory of individuals involuntarily who could be respect personal freedom of such indi- hospitalized psychiatric at a facility, namely viduals, guard against and to measures “gravely those who are disabled.” shaped are more social convenience 75, Haw. L. Act According Sess. at 123. to than mentally the needs of the ill. legislative history 73, Bill Senate No. which ultimately enacted as Act 75: upon Your Committee further consider- purpose The of this bill is to enable the 1831-86, ation has amended No. S.B. S.D. Family Court to involuntary hospi- order 2, H.D. 1 revising the definition of gravely talization for disabled individuals. “obviously ill” legally to that it assure

Gravely who, persons disabled are those involuntary sufficient to sustain hospital- disorder, as a result of a mental are unable ization for treatment. The definition now themselves, for care are unable to com- focuses on appreci- individuals who cannot responsible municate rational or decisions highly probable ate the serious and risks welfare, regarding personal them and fail safety them health and that will follow recognize inability. this The bill would treatment, refusing and also cannot enable the people [c]ourt order these comprehend advantages accepting hospitalized they so can receive the medication. appropriate care and treatment. Under often, mentally Too ill individuals are law, only persons the current who a are ignored until them conduct can be de- danger to themselves others can be criminal, scribed as and them condition hospitalized involuntarily. Preventive care requires lengthy hospitalization. po- The and treatment is not gravely available to lice, upon mentally called to control the ill persons keep disabled them from reach- individual, may easily recognize that ing stage the critical dangerousness. misconduct reflects Alness rather than 485, Rep. Sen. Stand. Comm. No. in 1985 proposed criminal intent. Under the Act Journal, Senate at 1089. See also Hse. bill, by the mental health workers will be Rep. Stand. Comm. No. in 1985 House degrading process summoned and the Journal, 1473; Sen. Rep. Stand. Comm. criminalization can be avoided. Other Journal, No. 1985 Senate at 927. equally necessarily obviously but not A1 legislature added the “obvi- undergo individuals have to an unfor- ously ill” category further of individuals process tunate of further deterioration be- involuntarily who could hospitalized. they hospitalized fore can be for treatment. Haw. L. Act legisla- Sess. at 715. The Your Committee finds that the bill as 1831-86, history tive of Senate Bill No. which need, important amended meets an signed into law as Act stated: reflects the best current information about purpose The of this bill is to establish the mental conditions to which it could be procedures providing appropriate care applied. treatment to certain ill indi- 52-86, Rep. Hse. Conf. Comm. No. recognize viduals who cannot them condi- Journal, also, House 940. See Sen. Conf. appreciate tion and need treatment. 76-86, Rep. Comm. No. in 1986 Senate Jour- applies only The bill to individuals who nal, at 775. illnesses, disabling suffer mental [sic] require medical treatment. Currently, governing the statutes involun- currently law respond tary does not civil commitment are codified in HRS individuals, many mentally

the needs of ill chapter statutory 334. The for com- criteria 334-60.2, social, mitment set forth HRS “Mental health” means state provides: psychological, physical well-being, capacity effectively variety function in a Involuntary hospitalization criteria. of social roles. person may psychiat- A be committed to ill “Mentally person” means facility involuntary hospitalization, ric having psychiatric disorder or other dis- the court finds: substantially impairs per- ease which That ill or son’s mental health and necessitates treat- abuse; suffering from substance supervision. or ment (2) person imminently That the is dan- “Obviously ill” a in means condition gerous others, gravely to or is self person’s pre- which behavior and current ill; obviously disabled or is and known, illness, history vious of mental (3) person That the is of or need care illness, disabling indicate a mental and the treatment, both, and there is no person incapable understanding is of through suitable alternative available highly probable there are serious and risks existing programs facilities and safety refusing to health and involved which would less be restrictive than treatment, advantages accepting hospitalization. treatment, understanding or of the advan- (1993 § Supp.2002). 334-60.2 HRS & tages accepting treatment and the alter- offered, particular natives to the treatment § HRS 334-1 defines terms various used risks, advantages, after the and alterna- chapter 334 HRS and includes follow- explained person. tives have been to the ing definitions that are relevant to these appeals:

“Dangerous range to others” “Treatment” the broad likely means to means intermediate, physical emergency, out-patient, injury do substantial or emotional do- care, another, act, miciliary, inpatient and evidenced a recent services evaluation, medical, including diagnostic attempt or threat. psychiatric, psychological, social ser- care, rehabilitation, vice vocational career “Dangerous person self’ means counseling, special and other services recently attempted has threatened or sui- handicapped extended harm; bodily person cide or serious or the persons. recently has behaved such a manner as (1993 Supp.2002). 334-1 HRS unable, to indicate that the is with- supeiwision out and the assistance oth- Imminently C. Whether Doe Was Dan- ers, nourishment, satisfy for need gerous to Herself care, self-pro- essential medical shelter Although Supreme the United States tection, death, it probable so that is required Court has that an individual be bodily injury, physi- substantial or serious “dangerous,” as well as in order cal debilitation will disease result unless committed, involuntarily to be has adequate treatment is afforded. any parameters set forth never for determin- ing “dangerousness”, inherently an difficult “Gravely disabled” means a condition in prediction Winchell, to make. Kathleen person, which a as a result of a mental Kentucky’s Revolving Need to Close Door: (1) disorder, provide is unable for that Proposal Movement Totvards Social- food, personal individual’s basic needs Responsible ly Approach to Treatment (2) shelter; clothing, or unable make III, Mentally Ky. Commitment N. responsible or communicate rational or de- (2002). 189, 201 L.Rev. See also M. Caroline concerning personal cisions individual’s Hall, Risky Mee Harold V. Business: welfare; capacity lacks the to un- Assessing Dangerousness in Hawai'i U. derstand that this is so. (2001). In attempt Haw. L.Rev. 63 an

provide more definite standards for deter- miimg dangerousness, the different states legislated making various criteria for have In Order found Stevens, People v. such assessment. See (Colo.1988) (discussing 761 P.2d oth- imminently substantially [Doe] dan- statutory requirements). er states’ self, gerous clear convincing evidence, recently in that be- Hawai'i, legislature has determined haved in such manner as to indicate that “dangerousness” order to meet the unable, supervision without commitment, involuntary per element others, satisfy and the assistance “imminently dangerous must son to self or nourishment, need for essential medical others, ... gravely obviously or ... disabled care, self-protection, shelter or so that it is alleged during ill.” Since the State never death, probable bodily substantial in- proceedings “gravely below that Doe was jury, physical or serious debilitation or dis- ill,” or “obviously disabled” the sole issue will adequate ease result unless treatment presented appeal is whether there is clear afforded, by refusing is i.e. to take medi- convincing in and evidence the record to loud, racist, chronically cations making and support family findings the in court’s Orders inflammatory strangers to remarks “imminently that dangerous and Doe was very and provoking which are like- to or self others.” ly/probable dangerous to cause retaliation. Doe her contends that refusal to take med-

1. strangers ications and her racist remarks to support constituted insufficient evidence to Turning family first to Order finding court’s that she was immi- specifically found that Doe was nently substantially dangerous and to her- imminently substantially dangerous and to light statutory self. definition of others, evidence, convincing clear and in self,” “dangerous agree. the term to we hearing that to stated her 334-1, § Pursuant to HRS Filipino girl brother her his belief that “[d]angerous person to means self’ being and for friend he are the reason her recently attempted or has sui- threatened hospital. diagno- This confirms harm; bodily or cide serious or the (Delusions sis mental illness of Persecu- recently such a behaved manner tion) inappropriate and hostile ac- unable, to that is with- indicate again Filipinos, tions toivards which is supervision out assistance of oth- diagnose to needed mental illness. ers, nourishment, satisfy for the need care, self-pro- essential shelter or added.) medical (Emphases foregoing language The death, tection, probable so that it is that confusing. A that is confirmation Doe is injury, or bodily phys- substantial serious finding ill is not a that Doe is ical debilitation disease %vill or residt un- imminently substantially dangerous adequate less treatment is accorded. others. (1993 Supp.2002) (empha- HRS 334-1 Additionally, our of the record indi- review added). foregoing sis definition sets although expert opinion that cates was there a much forth standard for determin- stricter testimony imminently adduced that was Doe ing dangerousness appears than to be re- dangerous aggressive to herself her because Supreme quired the United States Court. might provoke racist remarks assault scheme, statutory Under the Hawai'i order her, against no was that evidence offered establish that an individual others, imminently dangerous Doe self, convincing there must be clear evi- including groups racial she made that the either: dence individual about. remarks (a) Recently attempted or sui- threatened harm; or bodily therefore cide serious or We reverse Order footnote 4. 16. See she

(b) danger of assault because as was Recently in such manner behaved unable, people; and en- epithets with- racial individual is screamed to indicate assistance, behavior, satisfy his such as supervision gaged in self-destructive out cars). nourishment, moving essential medi- walking for in front of or her need care, that it self-protection, so or cal shelter un- “dangerous to self’ To be considered death, bodily substantial probable that however, scheme, it statutory Hawaii der the physical injury, debilitation or serious unable to enough that an individual is is not adequate treatment will result unless disease need, nourishment, essential satisfy the is afforded. care, self-protection -with- shelter or medical 5, no hearing on Petition evidence At the supervision of others. out and assistance recently had threat- presented that Doe convincing must also be clear' There bodily or serious attempted suicide ened inability to sat- that the individual’s evidence therefore, issue, wheth- crucial harm. The nourishment, essen- isfy his or her need convincing evidence there is clear er care, self-protection tial shelter or medical recently in such a manner behaved of others supervision and assistance without unable, without that she was as to indicate death, bod- substantial probably mil result assistance, satisfy supervision and physical ily injury, or serious debilitation care, nourishment, medical essential need adequate is afford- treatment disease unless would self-protection, so shelter or clearly While there was ed to the individual. inju- bodily probably die or suffer substantial adduced below Doe’s refusal evidence ry physical debilitation disease or serious would in her result take her medications adequate provided treat- she were unless better, get there was no clear failure to ment. presented that Doe convincing evidence imminently determining that was In Doe die, substantial bod- probably would or suffer herself, substantially dangerous to debilitation, or ily injury, physical serious family on Doe’s refusal court focused involuntarily if she were not serious disease com and Doe’s racist take her medications hospitalized. family that strangers ments family finding that likely probably provoke an The basis of the court’s would found herself, imminently dangerous factual cir similar was assault on Doe. Under Doe cumstances, might provoke courts have concluded other that Doe’s racist remarks permis her, involuntary hospitalization was against supported that also not assault law. their state statutes case sible under indicated the record. While the evidence See, J., Ill.App.3d e.g., In Emmett 333 re upset inappropriate remarks had that Doe’s (up Ill.Dec. 775 N.E.2d patients and embarrassed her other HSH holding involuntary hospitalization where ev public, in was no that there evidence respondent was idence revealed public had ever retaliated member of the voluntarily take his schizophrenic, refused to against Doe for her or threatened to retaliate medications, him willing had no to assist one public. Regrettably, racist remarks in care, physician that the in his testified is not type of behavior exhibited Doe respondent was to admin only way to treat many of Amer- uncommon on the streets of medication); Boggs v. psychotropic ister cities, including Honolulu. We larger ica’s Hosps. Corp., 132 City Health & New York think that most urban residents would like to (1987) (Milonas, A.D.2d 523 N.Y.S.2d as Doe individuals such would realize (uphold Rosenberger, dissenting) J. J. compas- mentally respond ill -with are petitioner ing involuntary commitment of violence, sion, anger than when rather petition demonstrated where evidence by such individuals. confronted diagnosed having been was er: was not light In of our conclusion Doe paranoid type; schizophrenia, with chronic self,” “dangerous as that term is defined comprehend her need was unable to 334-1, § need not address Doe’s food, we of HRS clothing, so that threat or shelter racist eonstitut- contention that her remarks well-being present; harm to her serious speech protected by the First CONCLUSION ed free Amendment.17 above, con- Based on the discussion we

clude, light procedural posture appeals, that underlying the cases these convincing record lacks clear evidence argument, At oral in- the State’s counsel support involuntary hospitalization of formed this court that due to constitutional pursuant and 6. Accord- to Petitions 5 concerns, the decision was made not to seek Findings ingly, we reverse the and Order involuntary hospitalization grounds Doe’s on Involuntary Hospitalization on entered June dangerous that Doe was to herself because Findings In- 2000 and the and Order of “gravely “obviously she was disabled” or ill.” voluntary Hospitalization entered October light of our discussion on the relevant 3, 2000. law, Supreme Court case we believe that the may misplaced. concerns State’s Su- FOLEY, Concurring Opinion J. preme legislatures to state left I concur because the record this case defining task of of a terms medical nature convincing that Doe lacks clear and evidence legal significance, that have and Hawaii’s “imminently substantially dangerous legislature ill indi- has decided others,” to self or as these terms are defined viduals who are rendered to them- unnecessary I 334-1. find it HRS they “gravely selves because disabled” or engage in a discussion on the constitutionali- “obviously may involuntarily hospital ill” ty governing involuntary of Hawaii’s statutes Moreover, up ized. other state courts have Chap- civil commitment as set forth HRS hospitalizations involuntary held of indi constitutionality of invol- ter 334. The these See, Dancer, e.g., v. viduals like Doe. Walker untary proceedings are not civil commitment (Ala.Civ.App.1980); People v. 386 So.2d question in this ease. Because the called into Stevens, Emmett, supra; In supra; re In re statutory standard State failed to meet the (Iowa Mohr, 1986); 383 N.W.2d 539 Consil Doe, involuntary for the civil commitment Diana, 310, 703 vio v. 269 A.D.2d N.Y.S.2d unnecessary con- it is to address Doe’s also (2000); Boggs City v. New York Health argument that her racial slurs stitutional Hosps. Corp., supra; Brown v. & Carolina protected speech. were P.A., Emergency Physicians, 348 S.C. (2001). S.E.2d issue of whether Doe was dan- Since the

gerous “gravely herself because she “obviously pre- ill”

disabled” was never however, appeal, we decline to

sented

address the issue. (Nakayama, recently Although Supreme J. at 33-34 dissent die Hawaii Moon, C.J.), ing, fighting joined unclear whether it is held that racial slurs constitute words Amendment, holding apply protected by the factual circum would that are not the First Hoshijo, of this case. State v. 102 Hawai'i P.3d stances notes HSH “You dumb chart, entry pertaining no it to? clinical there was statement is acknowledged August 12. Dr. Smolinski also Well, A I talk to it’s a—when—when upon incident which he based his

Notes

correct notes Q Okay. that [Doe] mentioned was redirected after talking A it’s not—it’s not So like patient [Doe] the other called a bitch? Is talking specific person, about that about that correct? particular person, talking that it’s about Yes, A that’s correct. that but then it was of their race. Q Okay. And the redirection was ver- Q Uh-huh. bal, redirection; physical not is that cor- specifically discussing A not So it’s rect? specifics person. some of that Yes, A that’s correct. Q Okay. basically verbalizing So she’s Q Okay. progress And in that note opinions her about race— any making there’s no mention of [Doe] remark; kind of racial is that correct? A Yes. any A I don’t racial see remarks. Q somebody of that —when she sees Q race? Okay. regarding actual— And wanting fight, her actual isn’t it correct spe- A But it towards a then directed that what said was—what [Doe] she asked person. cific patient the staff is her and this other Q person. Okay. On that engage supervised sparring could in a specifics person. A But not about match to relieve stress? incidents, Q Okay. And is it with these A Yes. easily true that is redirected? Have [Doe] Q Okay. That’s correct? you physically ever had to redirect her you’re And that’s the incident that talk asking? I’m what ing about — is, understanding yes, my A I—in A Yes. verbally— she’s redirected Q being Okay. And after informed that Q Verbally. possible, that was not there was no further something happened. A—when incident; correct? Q A I’m Okay. not aware of. it correct that other than Is perceived danger from racial her state- Q your And could I direct attention to ment otherwise demonstrates entry the next at 24:00 horn’s. safe behavior? A Yes. Well, then, yeah, inci- A racial and [Doe], Q regarding It indicates that going beginning August dents to the control, that her emotional redi- basically fight when she wanted (inaudible) just inappropri- rectable —but racial patients. other then it was not So verbally; is that ate correct? (inaudible). A Yes. Q you’re talking That’s the incident Q Okay. regarding And these racial re- about — to, you you marks that can be a testified specific type to what A little bit more Yes. Dr. something relating Smolinksi further testified Doe had to race and her situa- experienced my “homicidal ideations” or tion. That mind is an indication of “suicidal ideations[.]” possible persecution. delusion of only other witness for the State was obviously It’s not a threat. There was brother, during Doe’s who related that saying going no threat that I am to do recess, previ- “[Doe] had mentioned a something to that of it. because ex-girlfriend Filipino ous who is of descent But I think it all falls line with what the and blames me for her on—how cause should opinion doctor has stated as to his as to say? being- I Blames for the reasons her placing position how she is in a herself blaming in here and because she danger imminent and substantial to herself Filipino it descent is her fault that she’s in possibly I others. So find that element here and that I should this area.” to be met.

Case Details

Case Name: In Re Doe

Court Name: Hawaii Intermediate Court of Appeals

Date Published: Sep 30, 2003

Citation: 102 Haw. 528

Docket Number: 23534, 23806

Court Abbreviation: Haw. App.