FILED: December 15, 1999
In the Matter of V. A., Alleged
to be a Mentally Ill Person.
STATE OF OREGON,
Respondent,
v.
V. A.,
Appellant.
Appeal from Circuit Court, Washington County.
Donald R. Letourneau, Judge.
Argued and submitted September 14, 1999.
Susan D. Isaacs argued the cause and filed the brief for appellant.
Thomas C. Patton, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.
Before De Muniz, Presiding Judge, and Haselton and Wollheim, Judges.
WOLLHEIM, J.
Reversed.
WOLLHEIM, J.
Appellant seeks reversal of a judgment adjudicating her to be a mentally
ill person and committing her to the Mental Health Division. ORS 426.130(1)(b)(C).
The trial court committed appellant because her disorder made her unable to provide
for her basic needs, and she was not receiving the care necessary for health and safety.
ORS 426.005(1)(d)(B).(1) On de novo review, State v. O'Neill, 274 Or 59, 61, 545 P2d
97 (1976), we reverse.
Appellant is a 25-year-old female who suffers from schizoaffective
disorder. She was previously committed and is required to take medications for her
disorder. At the time of the commitment hearing in February 1998, appellant was
approximately seven and one-half months pregnant.
At a prenatal appointment in early February, appellant was diagnosed
with gestational diabetes. Her physician scheduled a follow-up appointment.
Appellant needed to be tested to determine the severity of her diabetes and whether
she would require medication to control it. Appellant appeared for the appointment,
but the tests could not be performed because she had not fasted for the previous
twelve hours. Another appointment was scheduled for a few days later. Appellant did
not keep this appointment because she expected transportation to be provided by her
services coordination assistant. The assistant could not provide transportation because
appellant had failed to notify the assistant of appellant's new address. After failing to
keep the appointment, appellant was held pending the outcome of her civil
commitment hearing. Although appellant was held at the same hospital where she
received prenatal care, appellant was never tested to determine the severity of her
gestational diabetes.
At the civil commitment hearing, the trial court heard testimony
addressing appellant's mental disorder, changed conduct in response to her pregnancy,
missed medical appointments, and housing problems. In their reports, two certified
mental health examiners found that appellant suffered from a mental disorder, was a
danger to others, and was unable to provide for her basic needs and was not receiving
care necessary for health and safety. The examiners were split as to whether appellant
was a danger to herself. Noticeably absent from the hearing was any evidence
regarding the severity of appellant's gestational diabetes. The state also failed to
present any expert testimony concerning the dangers generally posed by gestational
diabetes or the specific risks for appellant and the fetus.
At the close of testimony, the trial court concluded that appellant was
not a threat to herself or to others, but that her mental disorder was causing her to miss
critical medical appointments and that this endangered the fetus. The trial court
ordered appellant's commitment because she was "unable to provide for basic personal
needs and not receiving such care as necessary for health and safety." Appellant
assigns error to the trial court's conclusion and also assigns error to the trial court's
holding that appellant endangered the fetus. Because we conclude that these
arguments are dispositive, we do not address appellant's other arguments.
On de novo review, we examine the record to determine if the state has
established by clear and convincing evidence that appellant was unable to provide for
her basic needs. State v. Johnson, 131 Or App 561, 564, 886 P2d 42 (1994). Basic
needs are those things necessary to sustain life. State v. Brungard, 101 Or App 67, 71,
789 P2d 683, modified 102 Or App 509, 794 P2d 1257 (1990), rev den 311 Or 427,
812 P2d 827 (1991). Medical care for a life threatening condition is considered a
basic need. Id. The threat to life must be likely to occur "in the near future." State v.
Jensen, 141 Or App 391, 394-95, 917 P2d 541 (1996). Furthermore, the threat must
be actual; a speculative threat is not sufficient for commitment. State v. Bunting, 112
Or App 143, 145, 826 P2d 1060 (1992).
There is a lack of evidence pertaining to the primary issue on which the
trial court based its decision--gestational diabetes. The record contains no evidence
that gestational diabetes is life threatening or would imminently harm appellant or the
fetus. The state failed to call an expert witness qualified to testify about the dangers
that gestational diabetes potentially posed for both appellant and the fetus. The trial
court attempted to adduce such evidence by directly questioning the one certified
mental health examiner called to testify:
"THE COURT: Can you help the Court understand what
gestational diabetes means? I'm asking gestational diabetes, would
you put into the record what that is?
"DR. GRANT: I am not too familiar about diabetic
conditions as relate to pregnancy, but apparently it is something that
does happen. And my express concern to the Court is that if she is
not keeping her appointments and not being responsible in taking her
medications, I really see her as compromising not only her own
physical health, but the physical health of the unborn child. So that's
my concern about stating that she is at risk to self.
"THE COURT: All right. And those may be obvious and
common sensical observations, but for the record, could you explain
medically why her not getting care, you know, from your point of
view, creates a medical risk?
"DR. GRANT: According to the witness, if I remember
correctly, she has missed appointments, has not taken medication,
has not followed through, and has really been forgetful and not
aware of the fact she needs to have laboratory studies to double
check the condition of her baby's health, as well as her own, and she
is not complying. And so this is the risk I see.
" * * * * *
"THE COURT: As I said, maybe it's just common sense."(2)
(Emphasis added.)
The record also lacks any medical evidence concerning the severity of appellant's
gestational diabetes. When appellant's attorney asked Grant if there was evidence
concerning the extent of appellant's gestational diabetes Grant replied:
"Not really, except that if her pregnancy is compromised or
complicated by a physical condition, I think that needs, in my
opinion, I would suspect it needs close supervision and care. That's
all I can say." (Emphasis added.)
Furthermore, there is an absence of evidence concerning the type of medical care
necessary to treat appellant's gestational diabetes and whether appellant's mental
disorder would prevent her from complying with a necessary treatment program. See
State v. Gjerde, 147 Or App 187, 192, 935 P2d 1224 (1997) (state must prove a causal
nexus between mental disorder and inability to meet basic needs).
Thus, the record is devoid of any evidence--much less clear and
convincing evidence--that (1) appellant's gestational diabetes, if untreated, posed an
immediate serious risk to her health or the health of the fetus; and (2) any failure to
obtain treatment was the result of appellant's mental disorder. Id. Apprehensions,
speculations and conjecture are not sufficient to prove a need for mental commitment.
See State v. Stanley, 117 Or App 327, 330, 843 P2d 1018 (1992) (commitment not
allowed based on apprehensions and speculations); see State v. Nance, 85 Or App
143, 145 n 2, 735 P2d 1271 (1987) (commitment not allowed based on conjecture).
The state attempts to fill that evidentiary gap by urging us to take
judicial notice of texts describing generally the health risks posed by gestational
diabetes. We decline to do so for two related reasons.
First, judicial notice must only be of a fact not subject to reasonable
dispute and that is "capable of accurate and ready determination by resort to sources
whose accuracy cannot reasonably be questioned." OEC 201(b)(2). Here, as noted,
the pertinent facts are both the dangers of gestational diabetes in general and the
specific threat posed to appellant and the fetus from gestational diabetes. The treatise
materials proffered by the state go only to general attributes of gestational diabetes
and do not relate to appellant's specific circumstance, which necessarily requires
expert medical testimony. SAIF v. Calder, 157 Or App 224, 227-28, 969 P2d 1050
(1998); see also State v. Kennedy, 95 Or App 663, 771 P2d 281 (1989) (expert
testimony required for generalizations pertaining to the symptoms of a disease and
effects of prescribed drug levels for a particular individual).
Second, relying on the state's materials, proffered for the first time on
appeal, would effectively deprive appellant of her rights of confrontation and cross-examination. Bend Millwork v. Dept. of Revenue, 285 Or 577, 583-84, 592 P2d 986
(1979). Because appellant's liberty interests are at stake in this civil commitment
proceeding, we decline to consider medical evidence tendered without the procedural
protections of confrontation and cross-examination.
We conclude that, due to the absence of evidence concerning gestational
diabetes and the specific threat it posed to appellant and the fetus, there was not clear
and convincing evidence that appellant was unable to provide for her basic personal
needs or that she was not receiving such care as was necessary for her health or safety.
Reversed.
1. ORS 426.005(1) provides, in part:
"(d) 'Mentally ill person' means a person who, because of a mental disorder, is one or more of the following:
"* * * * *
"(B) Unable to provide for basic personal needs and is not receiving such care as is necessary for health or safety."
Return to previous location.
2. We share the trial court's obvious frustration with the lack of medical evidence pertaining to gestational diabetes.
Return to previous location.
![]() |
|

![]() |
Updated: 12/15/99 Web authoring by Publishing & Distribution |