313
Submitted January 8, 2018, affirmed October 30, 2019
In the Matter of C. K.,
a Person Alleged to have Mental Illness.
STATE OF OREGON,
Respondent,
v.
C. K.,
Appellant.
Multnomah County Circuit Court
17CC03139; A165287
451 P3d 243
Appellant seeks reversal of an order committing her to the Oregon Health
Authority for a period not to exceed 180 days on the grounds that her mental
disorder makes her unable to provide for her basic needs, ORS 426.005(1)(f)(B).
She contends, and the state concedes, that the evidence is insufficient to support
her commitment. Held: In light of State v. M. A. E., 299 Or App 231,
448 P3d
656 (2019), the evidence presented at appellant’s civil commitment hearing was
sufficient to support her basic-needs commitment under the amended version of
ORS 426.005(1)(f)(B), because appellant’s mental disorder made her unable to
properly care for her ostomy area, which presented a nonspeculative risk of serious physical harm in the near future.
Affirmed.
Monica M. Smith-Herranz, Judge pro tempore.
Alexander C. Cambier and Multnomah Defenders, Inc.,
filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Inge D. Wells, Assistant Attorney
General, filed the brief for respondent.
Before Lagesen, Presiding Judge, and DeVore, Judge, and
James, Judge.
LAGESEN, P. J.
Affirmed.
314 State v. C. K.
LAGESEN, P. J.
Appellant seeks reversal of an order committing her
to the Oregon Health Authority for a period not to exceed 180
days on multiple grounds, including that she suffers from a
mental disorder that makes her unable to provide for her
basic needs, ORS 426.005(1)(f)(B). She contends that the evidence is insufficient to support her commitment. Although
the state concedes that the evidence is insufficient to support the commitment, we reject that concession insofar as it
addresses the basic-needs basis for appellant’s commitment.
See Cervantes v. Dept. of Human Services, 295 Or App 691,
693,
435 P3d 831 (2019) (“We are not bound to accept [a] concession and must decide whether to accept it.”). We do so in
this case because the trial court committed appellant under
the amended version of ORS 426.005(1)(f)(B), and, under our
recent decision in State v. M. A. E.,
299 Or App 231,
448 P3d
656 (2019), the evidence presented in this case is sufficient
to support appellant’s basic-needs commitment under the
amended version of the statute.
We review for legal error the trial court’s determination that the evidence is legally sufficient to support
appellant’s civil commitment, viewing the evidence in the
light most favorable to the trial court’s decision. State v.
S. R., 267 Or App 618, 619,
341 P3d 160 (2014).
At issue is whether the evidence is legally sufficient
to support the trial court’s determination that appellant’s
mental disorder (it is undisputed that she has one) makes
her unable to provide for her basic needs within the meaning of ORS 426.005(1)(f)(B), which provides:
“(f) ‘Person with mental illness’ means a person who,
because of a mental disorder, is one or more of the following:
“…
“(B) Unable to provide for basic personal needs that
are necessary to avoid serious physical harm in the near
future, and is not receiving such care as is necessary to
avoid such harm.”
As we recently explained in M. A. E., the current version of ORS 426.005(1)(f)(B)—which took effect on January 1,
Cite as 300 Or App 313 (2019) 315
2016—altered the legal standard for a basic-needs commitment. 299 Or App at 236-37. Under the previous version of
the statute, as we had construed it, a basic-needs commitment was authorized only when, absent commitment, the
person faced “an imminent threat to safe survival” because
of an inability to attend to the person’s own basic needs.
Id. at 237. We concluded that the amendments changed the
basic-needs standard in two ways: “one that relates to the
type of risk the allegedly mentally ill person must face if not
involuntarily committed (‘serious physical harm’) and one
that relates to the time-frame in which that risk must exist
(‘in the near future’).” Id. (quoting ORS 426.005(1)(f)(B)). We
explained that, as a result of the amendments, the standard
for a basic-needs commitment is now as follows:
“[A] person meets the ‘basic needs’ definition of a ‘[p]erson
with mental illness’ under ORS 426.005(1)(f)(B) if the person is unable to provide for his or her basic personal needs
in a way that leaves the person at nonspeculative risk of
‘serious physical harm’—meaning that the person’s safe
survival will be compromised—in the near future, even
though that risk is not imminent.”
Id. at 240. Applying the standard to the evidence in that
case, we concluded that, although it was a close call, the
record supported the inference that, if released, the appellant would stop taking her medication, decompensate, and
have great difficulty making her own arrangements for
food. Id. at 241-42. Specifically, we concluded that, “[v]iewed
as a whole, the record thus supports a determination that,
if appellant were released from the hospital, she would stop
taking medication and, in no more than a week, become
unable to obtain food, even if she might wish to eat.” Id.
That, we concluded, was sufficient to support the trial court’s
“basic needs” determination under the amended version of
ORS 426.005(1)(f)(B). Id. at 242.
We reach a similar conclusion in this case. Although
this case likewise is a close case, the evidence presented
below ultimately allows for the inference that, absent hospitalization, due to her mental disorder and her complicated
medical condition, appellant faces a nonspeculative risk of
suffering from a serious, life-threatening infection in the
near future.
316 State v. C. K.
Specifically, at the time of the hearing, appellant
was 61 years old and being cared for by a medical team at
the Unity Center for Behavioral Health. Before being taken
to Unity, appellant had briefly been detained in jail and,
before that, been in a nursing facility. However, at the time
of the hearing, she did not have a residence and would need
to stay in a motel if released.
Appellant suffers from depressive disorder. She also
has “memory issues and declining executive functioning,”
indicating a “major neurocognitive disorder.” Appellant also
suffers from a number of serious physical ailments, including “marked[ ]” hypertension, untreated hepatitis C, chronic
kidney disease, chronic pain from a hip injury, and, due to
cancer that had required surgical removal of part of her
bowel eight years earlier, an ostomy site, which is an opening in the skin that allows feces to be collected in a colostomy bag outside of the body.
A few days before the commitment hearing, while
appellant was hospitalized, a CT scan indicated that the
ostomy site had become infected or inflamed, although it had
improved by the time of the hearing. Dr. Njoroge, a member
of appellant’s treatment team, observed that the ostomy site
needed to be better taken care of. Regarding proper care of
the site, he explained that it is “an extremely tough situation
to deal with, having an ostomy”; the area “needs to be kept
very, very clean,” and “[i]t needs to be changed often.” He
explained that there are risks of infection and obstruction,
and that “[i]t needs frequent follow-up … with a consistent
medical provider.”
Njoroge testified that it does not appear that appellant is able to care for the area by herself.
“She, off and on, is not able to … keep the area sanitary,
using gloves. She is not able to keep it from being inflamed,
by not poking at it and—and using abrasive things on it.
And she often can’t remember her medications and when
it’s time to take care of—of the ostomy.”
Njoroge stated that there had been “multiple reports from
nurses” that appellant had “been trying to poke foreign
objects into her stoma.”
Cite as 300 Or App 313 (2019) 317
In Njoroge’s opinion, appellant’s “ability to care for
herself is … lesser than the degree of—of care which her
medical issues require.” He also opined that there was a
close relationship between her medical conditions and her
mental state. He noted that “what we think is [a] depressed
mood can certainly affect one—one’s motivation, concentration, and therefore affect [one’s] ability to care for such
an intricate medical procedure.” In addition, there was evidence that appellant’s neurocognitive disorder affected her
memory and executive functioning. Her memory issues had
been observed to interfere with her ability to keep track of
her medications and the care of her ostomy site. Njoroge
explained that an issue “that keeps coming up is the administration of medications. An RN will give her medications,
and a few minutes later she won’t remember that she got
it, and then that becomes a point of contention, and she
becomes agitated.”
Njoroge opined that, if appellant were to be released
on the day of the hearing, it was “likely” that she would drink
alcohol. In his opinion, the effect of alcohol on her conditions
would be to “make her more depressed” and “would obviously make her less able to care for her complicated medical
issues.” Njoroge further opined that appellant’s inability to
correctly care for her medical conditions could have serious
health consequences. He primarily focused on her ability to
care for the ostomy site. “The most salient thing I can think
of is infection of the area would—is close to a lot of vital
organs and would be very, very serious.”
“Q. Can you provide an estimate—or a medical opinion as to how that infection would play—would play out
within like the next week if she were not—if she would be
released, not care for herself? What would that week be
like with the infection?
“A. She would likely not be able to tolerate food by
mouth. She might get obstructed, and not be able to have
output come out of the ostomy bag, which is dangerous,
because that will also keep her from taking in food by
mouth. She would become febrile and bacteria would probably enter her bloodstream, at which point she would become
septic and go into organ failure.”
318 State v. C. K.
Although this case, like M. A. E., can be characterized as a close case, all in all, this evidence supports a determination that, if appellant were released from the hospital,
she would lack the capacity to care for her ostomy site due to
her mental disorder and memory lapses. This, in turn, would
place her at nonspeculative risk of a serious life-threatening
infection—one that could lead to organ failure—in the near
future. Therefore, the trial court permissibly found that the
state had met its burden of proving by clear and convincing
evidence that appellant was unable to provide for her basic
personal needs that are necessary to avoid serious physical
harm in the near future.
Affirmed.
