#29943-a-MES
2023 S.D. 12
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
…
JEREMY JOHNSON, Administrator,
S.D. Human Services Center, Petitioner and Appellee,
v.
B.T., Respondent and Appellant.
…
APPEAL FROM THE CIRCUIT COURT OF
THE FIRST JUDICIAL CIRCUIT
YANKTON COUNTY, SOUTH DAKOTA
…
THE HONORABLE DAVID KNOFF
Judge
…
GARRETT J. HORN
Yankton, South Dakota Attorney for respondent
and appellant.
SCOTT B. CARLSON
Special Assistant Attorney General
Department of Social Services
Pierre, South Dakota Attorneys for petitioner
and appellee.
…
CONSIDERED ON BRIEFS
NOVEMBER 8, 2022
OPINION FILED 03/01/23
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SALTER, Justice
[¶1.] After B.T.’s involuntary commitment to the Human Services Center
(HSC), its administrator petitioned the circuit court for an order allowing the HSC
to administer psychotropic medication to B.T. without his consent. The court
conducted an evidentiary hearing and granted the petition, allowing the HSC to
administer psychotropic medication to B.T. for up to one year, subject to certain
conditions. B.T. appeals, alleging the court granted the petition without sufficient
evidence. We affirm.
Factual and Procedural Background
[¶2.] B.T was admitted to the HSC pursuant to an emergency commitment
after reports that he was exhibiting manic, delusional, and threatening behavior, all
connected to his fervent religious views. He was later involuntarily committed
following a hearing before the Yankton County Board of Mental Illness. See SDCL
27A-10-9.1 (authorizing a board of mental illness, following a review hearing, to
order a person’s involuntary commitment “for an initial period not to exceed ninety
days”).
[¶3.] This appeal arises from a separate, but related, proceeding in which
the HSC, through its administrator, Jeremy Johnson, sought an order from the
circuit court to administer psychotropic medication to B.T. without his consent. The
HSC petition, signed by counsel, alleged that B.T.’s treatment plan includes the
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administration of psychotropic medication but that B.T. has refused to consent to
this form of treatment. 1 The petition further alleged:
• [B.T.] lacks the capacity to make decisions regarding [his]
own treatment with psychotropic medication.
• [B.T.] presents a danger to self or others; [B.T.’s] condition
cannot improve or may deteriorate without medication; or
[B.T.] may improve without the medication but only at a
significantly slower rate.
[¶4.] The circuit court appointed counsel for B.T. and conducted an
evidentiary hearing on the HSC’s petition. See SDCL 27A-12-3.14 (providing notice
and hearing procedures). B.T. did not appear at the hearing, and his counsel
waived his client’s appearance. See SDCL 27A-12-3.19 (stating a person subject to a
petition for an order to medicate “may appear personally at any hearing and testify
on his or her own behalf, but the person may not be compelled to do so”).
[¶5.] The HSC presented the testimony of Christopher Davidson, M.D., who
is an HSC psychiatrist. Dr. Davidson stated he was “standing in for” B.T.’s
attending psychiatrist, Dr. Kleinsasser, who was unavailable. Although Dr.
Davidson stated B.T. “wasn’t officially my patient[,]” Dr. Davidson testified that he
knew B.T. because he was housed “on the unit that I cover” and had met with him
the previous day “for a fair amount of time[.]” Dr. Davidson had also reviewed
B.T.’s medical records and spoke to Dr. Kleinsasser about B.T.’s condition and
treatment.
1. B.T. has, at intermittent times, consented to the administration of
psychotropic medication.
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[¶6.] Dr. Davidson testified that B.T. has been diagnosed with Bipolar
Disorder Type 1 with psychotic features and described some of B.T.’s behavior:
He has quite a bit of energy and a strong belief in his mission to
educate people about the Geneva Bible and so we had a long talk
-- or not a long talk, but a significant talk about the King James
version of the Bible versus the Geneva version. And [B.T.] very
strongly believes that he needs to let things be known about
what’s going to happen in the world, that we could all be in
danger. And he, when people try to stop him, becomes impatient
and irritable. He can jump to conclusions and occasionally he’ll
become very suspicious or paranoid that he’s being persecuted,
so then he will refuse to be compliant with medications and --he
hasn’t made outright threats that I -- you know, that he would
hurt a specific person, but many people have felt, even as
recently as yesterday, that he was being too agitated and
threatening and we had to take him to the intensive treatment
unit for him to calm down.
[¶7.] In his responses to a series of questions, Dr. Davidson confirmed that
B.T. lacks the capacity to make competent decisions about his care and the use of
psychotropic medication and that without psychotropic medication, B.T. would be a
danger to himself or others. Dr. Davidson also described B.T.’s treatment plan
which includes using psychotropic medication as well as keeping B.T. in a safe
environment where his physical condition can be monitored for the presence of side
effects from the medication. According to Dr. Davidson, these potential side effects
could range from fatigue and slowness of thought or motion to “rare dangers”
involving risks to kidney, liver, and bone marrow functioning.
[¶8.] Dr. Davidson also expressed a lack of optimism about B.T.’s mental
health prognosis in the absence of psychotropic medication. In Dr. Davidson’s view,
B.T.’s mental condition would either deteriorate, fail to improve, or improve at a
much slower rate than it would with the use of psychotropic medication.
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[¶9.] The HSC also introduced a written report completed by another HSC
psychiatrist, Ramesh Somepalli, M.D. Dr. Somepalli provided a “consult” or
assessment of B.T. one day after his admission to the HSC which Dr. Somepalli
noted was prompted by B.T. “exhibiting manic and psychotic symptoms in [his]
community” where he was alleged to be “delusional, verbally and physically
threatening.” Dr. Somepalli observed that B.T. continued to “exhibit manic
symptoms and [ ] [was] religiously preoccupied and grandiose” at the time of his
assessment. B.T. refused to take medications and stated that “God [is] helping
him[.]” Dr. Somepalli concluded that B.T.’s “judgment and insight are severely
impaired” and that he is “not competent to make an informed decision regarding
treatment of his mental illness.”
[¶10.] At the end of the hearing, the circuit court granted the HSC’s petition
to administer psychotropic medication without B.T.’s consent in an oral decision,
complete with findings of fact. Applying a clear and convincing standard of proof,
the court found:
• [B.T.] has a diagnosis of Bipolar Type 1 with psychotic
features; that he has been taking some medications, although
there’s been some difficulty and some resistance to the
medications.
• [B.T.’s] bipolar diagnosis has been exhibiting itself with
irritability, over-exuberance. He’s becoming paranoid about
what’s happening in the world, feels he – it’s to the point
where he feels persecuted. He gets agitated and threatening.
He’s got some strong religious beliefs. The Court finds that
the beliefs have gotten to the point where they’ve really gone
sort of beyond religious beliefs and he kind of fixates on those
to where he does feel persecuted and becomes agitated.
• [B.T.’s] judgment is impaired by his mental illness to such an
extent that . . . he lacks capacity to make a competent,
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voluntary and knowing decision regarding taking
psychotropic medications. He is a danger to himself in that
he cannot provide for his basic human needs, provide for a
safe environment.
• [B.T.] has a treatment plan at the Human Services Center
that provides medications, also other treatment that is
consistent with his diagnosis. Need for medications has been
discussed with [B.T.] by staff at the Human Services Center
and he -- the Court believes he is not able to meaningfully
understand the need for the medications.
• There are side effects including being sedated or tired. He
could experience weight gain. Additionally, there are
movement disorders and there could be more serious
disorders. Neuroleptic malignant syndrome is one of them.
The Court is also aware that there can be allergic reactions
to medications. The staff has observed to train – or trained
to observe for side effects and they have not been noted.
There was some mention of some sedation or tiredness, but
that’s not to the point of being problematic. The Court notes
that he has shown some improvement, so the benefits
outweigh the side effects.
• [I]f [B.T.] does not receive the medication, his condition
would not improve or it would deteriorate. If it were to
improve, it would be at a significantly slower rate. The
testimony was that it could be months before there would be
a possibility of him being discharged from the Human
Services Center.
[¶11.] The circuit court’s subsequent written order restated the court’s
findings by clear and convincing evidence that B.T. lacked competency and that the
administration of psychotropic medication was necessary. The order specifically
authorized the HSC “to administer and monitor the administration of psychotropic
medication . . . for a period of one year . . . unless terminated earlier pursuant to
SDCL 27A-12-3.6.”
[¶12.] B.T. appeals, arguing that the evidence was insufficient to support the
circuit court’s decision. In B.T.’s view, the court should not have credited Dr.
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Davidson’s testimony, as it did, because he was not B.T.’s attending physician. The
absence of Dr. Kleinsasser, B.T. argues, deprived him of the opportunity to
challenge his opinions directly. B.T. also claims that the court did not properly
consider the side effects of the psychotropic medication before authorizing its use.
Analysis and Decision
Standard of Review
[¶13.] We review the sufficiency of the circuit court’s factual findings under a
clearly erroneous standard. Rabenberg v. Rigney, 1999 S.D. 71, ¶ 4,
597 N.W.2d
424, 425; see also Lindquist v. Bisch,
1996 S.D. 4, ¶¶ 15–16,
542 N.W.2d 138, 140–
141 (holding that in the context of an involuntary commitment proceeding, the
sufficiency of a circuit court’s factual findings present a factual issue that is
reviewed for clear error). “Clear error is shown only when, after review of all the
evidence, ‘we are left with a definite and firm conviction that a mistake has been
made.’” Rabenberg,
1999 S.D. 71, ¶ 4,
597 N.W.2d at 425 (citation omitted).
Orders to Medicate
[¶14.] Generally, “involuntarily committed adults may refuse any
psychotropic drugs.” Steinkruger v. Miller,
2000 S.D. 83, ¶ 5,
612 N.W.2d 591, 594
(citing SDCL 27A-12-3.12; Rabenberg,
1999 S.D. 71, ¶ 12,
597 N.W.2d at 426). 2 The
fact that a person has been involuntarily committed does not, itself, mean that the
person lacks competency to accept or refuse treatment using psychotropic
2. Though no constitutional question is presented here, we have recognized “a
substantial liberty interest under the Due Process Clause of the Fourteenth
Amendment to refuse psychotropic medication.” Steinkruger, 2000 S.D. 83,
¶ 16, 612 N.W.2d at 598.
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medication. See SDCL 27A-12-1.2 (“[N]o person may be deemed incompetent . . .
solely by reason of his detention, admission, or commitment under this title.”).
[¶15.] However, if the administrator of the HSC believes the patient lacks
competency to refuse psychotropic medication treatment, the administrator may,
subject to certain requirements, petition a circuit court or board of mental illness for
an order authorizing the administration of the medication without the patient’s
consent. SDCL 27A-12-3.13. 3 We have interpreted SDCL 27A-12-3.13 to prescribe
the requirements necessary for a petition to medicate a patient. See Rabenberg,
1999 S.D. 71, ¶ 9,
597 N.W.2d at 426 (holding SDCL 27A-12-3.13 “clearly sets forth
the criteria that must be met before an administrator . . . may petition the circuit
court for the authority to administer psychotropic medication”).
[¶16.] As we explained in Rabenberg, these criteria include the requirement
that two medical professionals, after a personal examination, agree that the use of
psychotropic medication “will be medically beneficial to the person and is necessary
because: (1) The person presents a danger to himself or others; (2) The person
cannot improve or his condition may deteriorate without the medication; or (3) The
person may improve without the medication but only at a significantly slower rate.”
1999 S.D. 71, ¶¶ 6–9 n.3, 597 N.W.2d at 425–426 n.3 (quoting SDCL 27A-12-3.13
(1999) (amended 2012)).
[¶17.] The type of medical professionals whose concurrence is necessary for a
petition to administer psychotropic medication has varied over the years as a result
3. The provisions of SDCL 27A-12-3.13 also allow a facility director or an
attending psychiatrist to seek an order to administer psychotropic
medication.
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of legislative amendments. For instance, when we decided Rabenberg in 1999, the
text of SDCL 27A-12-3.13 conditioned the decision to petition for an order to
medicate upon the agreement of “the administrator or facility director or attending
psychiatrist and the person’s treating physician” that the medication would be
beneficial and was necessary.
[¶18.] However, the Legislature amended SDCL 27A-12-3.13 in 1999, before
our Rabenberg decision, to require the concurrence of “the person’s treating
physician and the medical director or attending psychiatrist[.]” That formulation
remains intact in the present version of the statute and was unaffected by 2012
amendments to SDCL 27A-12-3.13 that revised several aspects of the statute not
implicated here. 4
[¶19.] Once a petition seeking an order to medicate is filed, it must be heard
by a court or a board of mental illness on an expedited basis pursuant to rules set
out in SDCL chapter 27A-12. See SDCL 27A-12-3.14 (listing requirements for
appointing counsel, service of the petition and the notice of hearing, and scheduling
the hearing); SDCL 27A-12-3.19 (stating rights to appear, present evidence,
subpoena and cross-examine witnesses). The authority of the court or the board to
4. The current version of SDCL 27A-12-3.13 allows courts and “boards of mental
illness” to authorize the administration of psychotropic medication and “such
other treatment as may be necessary for the treatment of the person’s mental
illness, including electroconvulsive therapy[.]” See Washington v. Harper,
494 U.S. 210, 215,
110 S. Ct. 1028, 1033,
108 L. Ed. 2d 178 (1990) (holding
that an administrative panel may authorize administering medication to a
mentally ill prison inmate after a hearing). The Legislature’s 2012
amendments to SDCL 27A-12-3.13 also added a specific lack-of-competency
determination as a predicate for a petition seeking an order to medicate a
patient.
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order the administration of psychotropic medication is described in SDCL 27A-12-
3.15. This statute requires proof by clear and convincing evidence that the patient
lacks the capacity to make a competent decision concerning psychotropic medication
and that the medication is “essential under the criteria in § 27A-12-3.13.” SDCL
27A-12-3.15; see also Steinkruger, 2000 S.D. 83, ¶ 5,
612 N.W.2d at 594 (quoting
SDCL 27A-12-3.15).
[¶20.] As a consequence, the three criteria set out in SDCL 27A-12-3.13 as
petition requirements also establish the standard for a fact-finder’s ultimate
findings:
Psychotropic medication may be court ordered only if it is found
to be “essential,” “medically beneficial,” and “necessary” because
the patient (1) “presents a danger to himself or others;” (2)
“cannot improve or his condition may deteriorate without the
medication;” or (3) “may improve without the medication but
only at a significantly slower rate.”
Steinkruger, 2000 S.D. 83, ¶ 5,
612 N.W.2d at 594 (quoting SDCL 27A-12-3.13, -
3.15).
[¶21.] Here, the circuit court correctly applied the law, and its factual
determinations regarding B.T.’s competency and the criteria for administering
psychotropic medication were based upon competent, and unrebutted, evidence.
B.T.’s principal claim to the contrary is that there was insufficient evidence that he
was a danger to himself or others. Despite non-specific reports of threatening
behavior on the date of his emergency commitment, B.T. argues that there was no
evidence that he threatened anyone or presented a danger to himself. See SDCL
27A-1-1(6), -(7) (defining “[d]anger to others” and “[d]anger to self”). But even if this
claim had merit, it would not impact the outcome here.
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[¶22.] Separate and apart from the finding that B.T. was a danger to himself
or others, the circuit court also supported its decision to order the psychotropic
medication with findings that addressed the other two statutory bases set out in
SDCL 27A-12-3.13(2), -(3)—neither of which are challenged on appeal. Based upon
the expert medical testimony, the court found specifically that B.T.’s “condition
would not improve or it would deteriorate” without psychotropic medication. The
court further found that if B.T.’s condition did improve without the medication, “it
would be at a significantly slower rate.” Any one of these additional determinations
that B.T.’s condition would (1) not improve, (2) would deteriorate, or (3) would
improve at a slower rate without the medication is sufficient to satisfy SDCL 27A-
12-3.13.
Testimony at the Hearing
[¶23.] B.T. claims that the circuit court erred by “giving substantial weight”
to Dr. Davidson’s testimony, though he was not B.T.’s attending physician—Dr.
Kleinsasser was. The argument is unsustainable for three apparent reasons.
[¶24.] First, B.T. did not object to Dr. Davidson’s testimony or, more
specifically, did not object to the absence of testimony from Dr. Kleinsasser. The
argument is not preserved for appeal, and we could refuse to accept it on this basis
alone. See State v. Fischer, 2016 S.D. 1, ¶ 12,
873 N.W.2d 681, 686 (quoting
Lindblom v. Sun Aviation, Inc.,
2015 S.D. 20, ¶ 8 n.2,
862 N.W.2d 549, 552 n.2
(“Ordinarily an issue not raised before the trial court will not be reviewed at the
appellate level.”)).
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[¶25.] Second, the claim that the circuit court could not order psychotropic
medication in the absence of testimony from Dr. Kleinsasser is foreclosed by our
decision in Rabenberg. There, we held that SDCL 27A-12-3.13 simply requires
“that two individuals concur as to the need for medication” to “petition the circuit
court . . . .” 1999 S.D. 71, ¶ 9,
597 N.W.2d at 426. The statute could not, in other
words, “be interpreted to set forth a testimonial requirement[.]”
Id.
[¶26.] Though the text of SDCL 27A-12-3.13 has changed as to which two
individuals must concur, as indicated above, our holding in Rabenberg remains the
law. The concurring opinions regarding the medical benefit and necessity of
psychotropic medication only relate to a requirement to petition for an order to
medicate and not a compulsory witness requirement for the subsequent hearing. 5
Rather, the proof at the hearing must demonstrate a patient’s inability to make an
informed decision about psychotropic medication treatment and the necessity for
the medication under the three enumerated criteria set out in SDCL 27A-12-3.13.
1999 S.D. 71, ¶¶12–13, 597 N.W.2d at 426–427.
5. We note that the HSC’s petition does not appear to be entirely consistent
with the standard under SDCL 27A-12-3.13. Instead of alleging the
concurrence of the attending physician and either the medical director or a
treating psychiatrist (as Rabenberg would require under the amended text of
SDCL 27A-12-3.13), the petition here alleges the concurrence of B.T.’s
“treating psychiatrist and a consulting psychiatrist.” (Emphasis added.) The
source of this formulation of the standard is unclear. The term, “consulting
psychiatrist,” appears only once in SDCL chapter 27A-12 at SDCL 27A-12-
3.16, but the reference in that statute relates to review procedures following
an order to medicate a patient. Regardless, even if the petition here did not
strictly comply with SDCL 27A-12-3.13, B.T. has not raised it, and, further,
there is no evidence that his rights were impacted. The record at the
evidentiary hearing included competent expert evidence from two
psychiatrists, each of whom opined that psychotropic medication would be
medically beneficial and was necessary to treat B.T.
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[¶27.] And finally, we have already concluded above that the evidence was
sufficient to sustain the circuit court’s order. Dr. Davidson’s testimony and Dr.
Somepalli’s report were admitted without objection, and B.T. did not seriously
challenge their opinions that psychotropic medicine was necessary or that he was
not competent to consent to the treatment. There was, for instance, no contrary
evidence or argument, and Dr. Davidson’s cross-examination by B.T.’s counsel
seemed directed at probing Dr. Davidson’s opinion that forced medication
represented the least restrictive alternative, which Dr. Davidson confirmed.
[¶28.] B.T. also argues that the absence of Dr. Kleinsasser and Dr. Somepalli
at the hearing “unfairly denied him the opportunity to cross examine those who are
advocating for the administration of psychotropic medications[.]” Leaving aside the
fact that B.T. did not make this argument at the hearing, the claim also overlooks
the fact that Dr. Davidson appeared personally at the hearing, unequivocally opined
that psychotropic medication was necessary, and was cross-examined by B.T.’s
attorney.
Consideration of Side Effects
[¶29.] B.T.’s additional argument that the circuit court overlooked the side
effects of psychotropic medication is belied by the court’s express findings regarding
the potential side effects Dr. Davidson described. B.T.’s more specific claim that the
administration of psychotropic medication would not reduce his stay at the HSC
because he would need to remain there in order to be medically monitored for side
effects is not factually supported by the record. The argument presumes B.T.
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cannot return home and be monitored by local medical professionals—a fact not
supported directly or circumstantially by evidence contained in the record. 6
[¶30.] We affirm.
[¶31.] JENSEN, Chief Justice, and KERN, DEVANEY, and MYREN,
Justices, concur.
6. B.T.’s argument also fails to account for SDCL 27A-12-3.7 which sets forth
the requirement for development of an aftercare plan under which a patient
can obtain services after discharge.
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