*1 an and not persons independent that reasonable could not differ on of action is for tort Even if this conten- of the case. for loss of consortium. outcome correct, of no jury’s finding tion is trial Rickey also claims that would have negligence by College gave court erred in the instruction that it barred her on a cause of action the standard care jury regarding Therefore, negligence. based on we do not required of an athletic trainer. The in claim of address the merits Ghislaine’s given virtually struction identical to that because, error, error even if the trial court’s Crockett, contained in J. Instruction Jury dismissal of her cause was harmless. 50.3, (1957) Forms for Utah No. at 130-31 Affirmed. No costs awarded. (captioned Duty By “Limitation Upon Owed Patient”). Physician Rickey’s argument STEWART, HALL, C.J., and HOWE is that the instruction was be improper JJ., concur. physician cause: Mr. is not a nor a Slack professional, (2) by providing treatment OAKS, J., participate does not herein. to an injury would have healed alone, itself if left Mr. Slack became
“guarantor” good argu results. These giv
ments are without merit. Even if the error,
ing of the instruction was it was
harmless in this case because it Mr. held higher to the
Slack standard of care
governs physicians surgeons rather than the may appli lower standard that Utah, Plaintiff The STATE of cable to or athletic laymen trainers. Fur Respondent, thermore, argument pre the second cannot vail because it would mean that anyone,
including physicians surgeons, Riley JACOB, David treated an ordinary sprained ankle or an Appellant. other heal if left injury itself 18173. No. “strictly” unattended would be with liable out fault for any consequences adverse re Court of Utah. Supreme sulting from the treatment. No authority Aug. cited, has been nor has our research re vealed any, supports such an extension Thus,
of tort the trial court did
err in giving the instruction regarding
athletic trainer’s standard of care.1 appeal, Ghislaine claims that the dismissing
trial court erred in her cause
action. The trial court did so at the conclu
sion of the plaintiffs’ evidence on the
ground recognize Utah does not See,
cause action for loss of consortium. Ellis v.
e.g., Hathaway, Utah 2d (1972); Corbridge
P.2d 985 v. M. Morrin &
Son, Inc., 19 Utah 2d 432 P.2d
(1967). that her cause Ghislaine contends Co., (1971); P.2d 1209 all of 26 Utah 2d
1. We also note that when
the instructions
Corp.,
Simpson
Motors
v. General
jury
together
24 Utah 2d
and viewed
are construed
whole,
(1970);
Walkenhorst v. Kes
plaintiffs
preju
Linda E. Salt and appellant. fendant Wilkinson, Gen., N. Atty. Robert David L. Gen., City, Lake Parrish, Salt Atty. Asst. respondent. plaintiff OAKS, Justice: the continued confine- This case concerns defendant found not ment of by reason guilty release him refusal to appeals court’s annual recovery hearing pre- condition), the first avoid deterioration he was U.C.A., scribed statute. 77-14- confined in the Utah Taking stipulated (in- the ease on facts cluding reports findings psy- two I. defendant, had chiatrists who examined 27 years age. Defendant is For ten the parties’ agreement that defendant “had *3 years, he has suffered from schizo- paranoid defense” insanity absolute of under phrenia. condition, Because this he was U.C.A., 1953, 76-2-305), the district court discharged from the Air Force in 1971 and found not guilty by defendant reason of treated public private at various and insti- 6, 1980, the May ap- court tutions on numerous since occasions that pointed experts two to the court help deter- time. obsessed with the idea of mine or not “whether the defendant has him, evil around he made ineffectual at- fully sanity,” required recovered his by tempts Strategic to commandeer a Air (sub- in force. 77-24-15 statute then up Command bomber to blow world. recovered, sequently repealed). If defend- He a shotgun later stole shells from a ant discharged custody. would be from If sporting store, goods fired a shot into the not, he would be committed air, attempted and then approach- to shoot The State court’s order defined ing policemen. gun jammed. The He was “sanity” purpose for this as whether de- charged theft, burglary, with and aggrava- longer fendant to danger “is no himself or assault, ted and found not determination, Pending others.” de- of insanity. The record on is silent whether at Hospi- fendant remained the Utah State that finding resulted in any confinement. tal. His sexual obsessions have manifested 18, 1980, At on hearing July the court
themselves in various deviant behaviors in- reports psycholo- received written from two cluding exhibitionism, transvestism, verbal gists Dr. testimony and oral Brech abuse pedestrians, of women and one self- Lebegue, director medical forensic (and minor) apparently confessed attempted unit at the Hospital director sexual assault. He been has also obsessed of psychiatric forensic services Uni- with the idea of what it be would like to Hospital. Defendant was versity of Utah “carve a body woman’s off bones present represented counsel. The ” put then it on .... essentially undisputed: facts were Defend-
The five psychologists psychiatrists ant continued to suffer from schiz- paranoid ophrenia, examined defendant and testified or with the appropriate dosage but identified) (which submitted in this all reports case concluded had now been neuro- that he has a tendency leptic every to react to his frus- two his behavioral drugs weeks deadly and, dangerousness trations with potentially symptoms force and hence his to below, without very unlikely the treatment would discussed is himself and others very dangerous However, to with experience himself and to those to recur. de- around him. (as schizophrenics) fendant with other indi- upon could not be relied cated that he 21, 1979, On the evening September continue to take medication the Salt Lake City Department Fire extin- hospital, lease from the guished a fire in four rooms and a hall on would symptoms medication the third floor of an apartment house near recur a short (Hospital within time. rec- University Utah. When interviewed prior ords ten showed occasions ensuing investigation, defendant present confinement when defendant had stated that he had fire started the because himself voluntarily taken off he wanted to kill himself. He was charged when from the hospital.) released aggravated with arson and confined in the county jail without posting dialogue bond for about Much of the was a be- court, Then, three (to months. order tween the coun- psychiatrist, “are meaning paranoid schizophrenia sel on the in remission and whether the law under statute “is the that his condition medication” and released on permit been,” “underlying best it has but prescribed he take the medi- cured. disorder” has not been biochemical All desire a “middle cation. parties’ concludes, result, report As a the doctors’ “less restrictive alternative” ground” he has certify “we cannot Court that confinement and abso- compulsory between recovered from his illness.” as was throughout, lute was evident of Au- The court’s memorandum decision being put the fact was for- this case 7, 1981, this summary contains gust law ward as a case to how the clarify test (defendant’s presented by case problem applied would be to medical advances in order): appeal is from this ability symptoms of schizo- control it. phrenia but not to “cure” chronic suffers from a The defendant *4 which has a bio- apparently mental illness the complicated by The was also and be- psychological chemical cause that, 1, 1980, the July fact effective as of now, havioral He is not operative standard had been amended from manifestations. re- be, to “whether the defendant has recov- and will in all likelihood never covered his mental illness.” 77-14- of the aspects ered from the biochemical parties 5. The issue which stan- took over However, appears long that so disease. governed this de- disposition dard the of mainte- appropriate as he receives an fendant. medication, psycho- dosage nance 1981, 30, the ordered January dis- manifestations logical behavioral that defendant be released from the custo- many he oc- Historically, has on appear. dy upon Hospital Utah State casions failed to maintain his medication its staff specified by terms conditions institutionalized, he level when and under Parole supervision of Adult instance) (and in consequently every has the specific and Probation “under condition condition, In that psychotic. become by this Court that he be maintained on the his- question, there is based antipsychotic medicine at a level which en- information, that he is extraordi- torical sane,” him to which he failing ables remain dangerous to others and to himself. narily immediately be returned to the cus- described, just Under circumstances of the tody Thereaft- State this court find that the defendant cannot er, both the staff Parole and Adult has recovered from perform supervi- and Probation to declined statutes, meaning within the duties sory for defendant outside continue to and orders Hospital they they because believed Hospi- be maintained at the Utah State authority lacked do so. Find- that a tal. there is no likelihood Since taken, objection later ing this well the court for illness will be discov- cure defendant’s vacated order of conditional release soon, well re- ruling may ered the above incapable of execution. institutionalization sult lifetime 1981, July pursuant to a motion ade- who could function individual counsel, the an- defendant’s the court held danger, the com- quately, and nually hearing on whether defend- available carefully were munity, if his medication had to be sufficiently ant recovered However, no closely supervised. 77-14-5(2) (renumbered in 1983 leased. appears supervision means of lawful 77-14-5(3)). amendment as § time, and revision of exist at this some he felt he was told court that well when required seem be existing law would testified, psychiatrists on medication. Two in his condi- present before confirming joint their writ- essentially each sup- [Emphasis could released. tion report psychologi- ten to the court that the plied.] chronic cal manifestations of defendant’s
869
II.
1351 (1981) (incompetent
So.2d
to stand tri-
Miss.,
al);
Jaquith,
O’Bannon v.
315 So.2d
poses
problem
This case
the familiar
(civil
(1975)
commitment).
918
application
of old laws to new technolo-
gy. The American Psychiatric Association
decade,
During
variety
this same
Insanity
(Dec.
on the
Statement
Defense
applied
court decisions has
doctrines of due
1982) provides
background:
valuable
process and equal protection
clarify
con
treatment,
Modern psychiatric
particular-
stitutional
laws regu
constraints
state
ly
of antipsychotic drugs,
the use
permits
commitment
lating
per
seeming
restoration of
sanity
sons
from mental
suffering
illness.
Jones
defendants,
many
if it
even
cannot
States, - U.S. - ,
v.
103
United
S.Ct.
known with
whether
ac-
certainty
such
3043,
(1983)
77
(commitment;
L.Ed.2d 694
quittees still
dangerous.
remain
Texas,
v.
acquittee); Addington
approved by
... Once their release is
441 U.S.
99
... Unfortunately many Fireman, trial); Rone 473 F.Supp. stand have person- isdictions neither trained (treatment release; (N.D.Ohio 1979) nel nor appropriate outpatient facilities *5 civil). The rationale of some of the earlier provide resources to for such close legali casts doubt the these decisions on management previously per- violent ty are different of commitment conditionally sons who standards released. Where for and release in connection with civil and provide statutes conditional release but Jones judges proceedings, allow without these criminal the case resources, necessary public subject- is some as to explicitly approves differences great ed to risk insanity acquit- and the found of insan persons guilty not reason deprived tee is of an for a opportunity ity. statutory Utah’s law embodies such necessary phase Comment, of treatment. generally differences. See Following Insanity “Commitment Ac 6, Id. at pp. (1981). 94 605 quittal,” Harv.L.Rev. years, the last few at least other three appellate courts ques have considered the considera Hospital authorities have tion of whether a person committed for a who person ble to release has discretion mental illness was entitled to when civilly they when find that been committed his symptoms being were controlled longer hospitalization his her is no desira or but underlying medication his re illness justifying the conditions invol ble or case, mained. In each the evidence showed longer untary hospitalization exist. patient was likely not to take 64-7-30, Hospital authorities 64-7-42. §§ he voluntarily once was released patient on improved can even release an and that his condition outpatient receive or non- he case, then return. In each the appellate or on other reasonable treatment release, holding denied that under by them. 64-7-43. specified § conditions applicant these circumstances the continued 64-7-30, 64-7-7. See also §§ “dangerous” meet the standard for invol untary Harvey, options confinement. These for treatment Warren v. flexible (2d Cir.), denied, 632 specifically inapplicable F.2d 925 cert. and release are in 101 L.Ed.2d connection with the persons 66 133 committed (criminal State, acquittee); v. 151 administration of the criminal law. 64- Clark § aff’d, 7-54; Diamenti, Utah, Ga.App. (1979), 261 764 521 S.E.2d Ollerton v. P.2d 245 (1980) (criminal (1974). Ga. 266 899 to criminal S.E.2d 466 As defendants Miss., Stubbs, acquittee); insanity, 393 not reason of Bethany guilty by v. found 870 State, Bailey 210 Ga. hearing time of this S.E.2d
statute in effect at the Clark, 539, 121 P. (1953); Kan. Ex Parte they “shall not be specifically provided that in Even if the court had been therein until the released from confinement standard, the was harmless error in error shall, court which committed pro the evidence as to defendant because that the defendant has hearing, find that defend concluding vided for no basis illness.” 77- recovered from his mental § released and could be ant had recovered Thus, in persons 14-5.1 confined the State under either standard. proceedings a criminal Hospital as result of basis per- are not released on the same Second, error urges defendant outpatient committed treat- civilly: sons re right to determining district court’s is not ment or conditional release available is tied recovery lease in of a terms them, releasing is the authority Instead, he dangerousness to self others. the hospital. court rather than an official of to re right advocates the determination case, of the issue in specific In terms this statutory of the formula lease terms agree we therefore with the district court appreci capacity responsibility: responsible administrators that con or to wrongfulness ate conduct law in this effect time of requirements of form conduct did not re- 76-2-305(l).2 authorize conditional relies on Balson, lease of have been persons App.2d who found 58 Ohio Wolonsky (1976), apply N.E.2d which seems to argument confuses But this standard. act accountability for a criminal question of III. dispo with question appropriate arguments Defendant raises three ex person is sition or treatment rule and no lease. We on these others. accountability. cused The standard from First, defendant contends that 76-2-305(1) limited to the prescribed court’s ques district determination contrast, the accountability. In question of tion of his release in terms of from he until direction to confine law) illness” (the “mental current rather has recovered *6 (the ap than standard criminal acquittal was the for his basis crime) was, in treat plying questions time of charges addressed is effect, punishment a increase in ex retroactive not then Though ment and protection. statutes, prohibition against that violates the an ex in our the crite pressly prescribed Const, I, art. post facto 18. ria that found not person a his men argument This is meritless because the law of has not recovered from insanity himself he is question punishment; in does not increase tal illness when with that direction regulates procedures and treatment. or others is consistent hospitalization pending appeal, 1. While this shall remain case was Legislature following provision if it can added the Utah state committed to 77-14-5(2), effective March 1983: medical within reasonable determined probability medi- After and continued considera- record, hospitalization tion of if the court finds clear defendant’s cation or convincing thereby making evidence that the illness will reoccur mental mentally still ill and because danger person himself or substantial a presents danger a substantial to him- others. others, self or the court shall order him com- of this Although sentence the effect of last hospital. to the state The de- mitted obviously in future an issue new will statute confine- fendant shall not be released from hearings release of medicated defend- for the ment therein until the court which committed ants, appeal, and we issue in this it is not at shall, hearing, find that express opinion on it. recovered from his mental the defendant has given prosecut- illness. Notice shall be responsibility was This of criminal 2. standard attorney ing hearing. purposes For 76-2-305(1) materially in amended 1983. § section, person affected with mental (Supp.1983). as a illness which is in remission result of the legislative purpose serves lowing mo- legislative sufficient time for action approve tivated it.3 We the district court’s implementation, say 1987. dangerousness use of the criteria and follow Supreme Colorado holding Court STEWART, J., concurring concurs in the there is no constitutional violation in opinion of Judge Cornaby. District applying that standard to the question of whether to release a criminal defendant DURHAM, J., herself, having disqualified
found not guilty by reason of insanity.
herein; CORNABY,
does not participate
Giles,
People
192 Colo.
Finally, defendant contends that
view of the testimony symptoms that his medication,
had been controlled by his con
tinued confinement amounts to forbidden punishment on the basis of his
status as a schizophrenic. He relies on Rob California,
inson v.
82 S.Ct.
(1962),
release at this we affirm the judg-
ment of the district court.
HALL, C.J., HOWE, J., concur.
CORNABY, Judge District (concurring):
I Oaks, concur in the opinion of Justice
with comments!
This Court not accept proposi- should a patient
tion that must hospitalized
life because state fail provide statutes
for a release conditioned on participation
a mandatory court-ordered out-patient pro-
gram wherein the patient will receive the
required medication and on a counseling
regular basis. The problem should be re-
ferred this Court to the Legislature.
The court should review this case after al- amendment, By supra. recent our law now expressly embodies that criteria. See note