In re Spencer , 236 N.C. App. 80 ( 2014 )

NO. COA14-143
NORTH CAROLINA COURT OF APPEALS
Filed: 2 September 2014
In the matter of:
JAMES SPENCER Wake County
No. 13 SPC 3751
Appeal by respondent from order entered 25 July 2013 by
Judge Debra Sasser in Wake County District Court. Heard in the
Court of Appeals 11 August 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Josephine Tetteh, for the State.
Parker Poe Adams & Bernstein LLP, by Matthew W. Wolfe and
Robert A. Leandro, for petitioner-appellee Holly Hill
Hospital.
Appellate Defender Staples S. Hughes, by Assistant
Appellate Defender Mary Cook, for respondent.
McCULLOUGH, Judge.
Respondent James Spencer appeals from an order of the trial
court, involuntarily committing him to inpatient treatment for a
period not to exceed sixty (60) days. Based on the reasons
stated herein, we affirm the order of the trial court.
I. Background
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On 20 July 2013, Dr. Sharyn Comeau of Wake Med Hospital
filed an affidavit and petition for involuntary commitment,
providing that respondent James Spencer was “mentally ill and
dangerous to self or others or mentally ill and in need of
treatment in order to prevent further disability or
deterioration that would predictably result in dangerousness.”
The affidavit stated that respondent
has ongoing psychosis and hyper religiosity
concerning the mark of the beast and people
in authority being satanic in some way. He
continues to make decisions that compromise
his medical care, currently his sodium [is]
compromised to the point of needing medical
intervention. He has multiple past
psychiatric hospitalizations and he has a
sister who his his [sic] guardian t in part
[sic] of his medically compromising his
health due to his lack of judgment and
insight. He cannot be safely released into
the community at this time.
On the same day, Dr. Comeau also completed an “Examination and
Recommendation to Determine Necessity for Involuntary
Commitment.” Dr. Comeau opined that respondent was mentally ill
and dangerous to himself, and recommended inpatient commitment
for ten (10) days. On 22 July 2013, respondent was admitted to
Holly Hill Hospital.
A hearing was held at the 25 July 2013 session of Wake
County District Court. Dr. Muhammed Saeed, a psychiatrist at
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Holly Hill Hospital, testified that he had examined respondent
on 23 July 2013. Dr. Saeed described respondent as “very
psychotic, very paranoid, very agitated, not caring for self.”
Dr. Saeed stated that respondent had multiple medical problems,
but that the “most concerning is hyponatremia” which if it is
not treated, could be life threatening. Dr. Saeed opined that
respondent was mentally ill and suffering from schizophrenia.
Respondent displayed extreme paranoid ideation, somatic
delusions, and grandiose delusions. Dr. Saeed testified that
respondent was unable to care for himself as demonstrated by his
inability to restrict his fluid intake and his refusal to take
his medication the two previous days. Dr. Saeed testified that
he believed respondent was in need of further inpatient
treatment at Holly Hill Hospital and recommended a commitment of
sixty (60) days.
Respondent testified at the hearing. Respondent agreed
that he suffered from schizophrenia but did not think he needed
inpatient treatment and should have been discharged from Holly
Hill Hospital.
On 25 July 2013, the trial court entered an involuntary
commitment order. The trial court found by clear, cogent and
convincing evidence that
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THE RESPONDENT CONTESTS COMMITMENT. The
respondent acknowledges and recognizes that
he suffers from a mental illness, that being
schizophrenia. Symptoms include psychotic
behavior (somatic delusions and grandiose
delusions) and extreme paranoid behavior as
well as agitation. However, the respondent
does not appreciate the degree of his
paranoia, and this has resulted in
situations wherein he has threatened
physical aggression in response to medical
treatment.
The respondent suffers from hyponatremia.
Low sodium levels can be a life threatening
situation. The respondent disagrees with
his health care provider’s assessment of his
sodium levels. The respondent has been told
to intake no more than 1 liter of fluid,
which is about one quart (or 32 ounces).
While the respondent is trying to . . .
monitor his fluid intake, he believes that
he can consume 56 ounces of fluid (7 eight-
ounce cups).
Since his June 21, 2013 initial admission to
Holly Hill, the respondent’s compliance with
medication has been up and down. Most
recently, for the past two days he has
refused all medication, including medication
to treat his mental illness and his
hyponatremia. Without medical treatment,
the respondent will suffer from ongoing
psychotic decompensation. The respondent is
not able to appropriately cope with stress,
is not following recommendations, and won’t
cooperate with doctor’s advice.
The respondent has poor insight into his
paranoia and physical health condition. The
respondent’s refusal to take his medication
or follow his health care provider’s
instructions regarding fluid intake
demonstrate an inability to satisfy his need
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for medical care. The respondent is unable
to take care of himself without a structured
environment. He is not currently stable from
a mental or physical health perspective.
There is a reasonable probability of the
respondent’s suffering serious physical
debilitation within the near future unless
adequate treatment is given.
Based on the foregoing reasons, the trial court concluded that
respondent was mentally ill and dangerous to himself.
Respondent was committed to an inpatient facility for a period
not to exceed sixty (60) days.
On 22 August 2013, respondent filed notice of appeal from
the 25 July 2013 order.
II. Discussion
On appeal, respondent argues that (A) his involuntary
commitment was contrary to law because he was not evaluated by a
second physician within 24 hours of admission to the Holly Hill
Hospital in violation of N.C. Gen. Stat. § 122C-266 and that (B)
the trial court erred by involuntarily committing respondent
where he was not given notice of the commitment proceeding in
violation of N.C. Gen. Stat. § 122C-264.
Before addressing the merits of respondent’s appeal, we
first address the preliminary matter of whether his appeal is
moot. Although the sixty (60) day commitment period provided in
the 25 July 2013 order has expired, our Supreme Court has held
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that “[t]he possibility that respondent’s commitment in this
case might likewise form a basis for a future commitment, along
with other obvious collateral legal consequences, convinces us
that this appeal is not moot.” In re Hatley, 291 N.C. 693, 695,
231 S.E.2d 633, 635 (1977). Therefore, we hold that
respondent’s appeal is not moot and address the merits of his
appeal.
A. Examination by a Physician
Respondent argues that the record does not demonstrate that
he was examined by a second physician within twenty-four hours
of being admitted to Holly Hill Hospital, in violation of N.C.
Gen. Stat. § 122C-266. Respondent admits that while Dr. Saeed
testified that he examined respondent on 23 July 2013, there was
no written record of the examination demonstrating Dr. Saeed’s
findings. As such, respondent contends that the 25 July 2013
order should be vacated.
“It is well established that when a trial court acts
contrary to a statutory mandate and a [party] is prejudiced
thereby, the right to appeal the court’s action is preserved,
notwithstanding [the party’s] failure to object at trial.”
State v. Davis, 364 N.C. 297, 301, 698 S.E.2d 65, 67 (2010)
(citation and quotation marks omitted).
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N.C. Gen. Stat. § 122C-266 provides that
(a) Except as provided in subsections (b)
and (e), within 24 hours of arrival at
a 24-hour facility described in G.S.
122C-252, the respondent shall be
examined by a physician. This
physician shall not be the same
physician who completed the certificate
or examination under the provisions of
G.S. 122C-2621 or G.S. 122C-2632. The
examination shall include but is not
limited to the assessment specified in
G.S. 122C-263(c).
. . . .
(c) The findings of the physician and the
facts on which they are based shall be
in writing, in all cases. A copy of
the findings shall be sent to the clerk
of superior court by reliable and
expeditious means.
N.C. Gen. Stat. § 122C-266(a) and (c) (2013).
Our Court has previously held that “[t]he purpose of the
second examination [pursuant to N.C. Gen. Stat. § 122C-266] is
to protect the rights of a respondent who has been taken to a
medical facility immediately prior thereto to insure that he was
properly committed.” In re Lowery, 110 N.C. App. 67, 70, 428
S.E.2d 861, 863 (1993).
1
N.C. Gen. Stat. § 122C-262 is entitled “Special emergency
procedure for individuals needing immediate hospitalization.”
2
N.C. Gen. Stat. § 122C-263 is entitled “Duties of law-
enforcement officer; first examination by physician or eligible
psychologist.”
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Here, respondent concedes that Dr. Saeed’s testimony
illustrates that he conducted an examination of respondent on 23
July 2013, the day after he was admitted to Holly Hill Hospital.
Dr. Saeed’s testimony indicated that he believed respondent to
be mentally ill with a diagnosis of schizophrenia. Dr. Saeed
also stated throughout his testimony that respondent was a
danger to himself because he refused to take necessary
medication, was unable to care for himself, and was unable to
limit his fluids in order to keep his sodium level normal. On
appeal, respondent does not contest the substance of Dr. Saeed’s
testimony, nor does he argue that he was improperly committed
based on any insufficiency of Dr. Saeed’s examination.
Reviewing the record, we are unable to find that respondent was
prejudiced by the absence of a written record of Dr. Saeed’s
findings. Based on the foregoing, we reject respondent’s
argument that the involuntary commitment order should be
vacated.
B. Notice of Hearing
Next, respondent argues that the trial court erred by
failing to provide respondent with notice of the 25 July 2013
commitment hearing in violation of N.C. Gen. Stat. § 122C-264.
N.C. Gen. Stat. § 122C-264(c) provides that
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[n]otice to the respondent, . . . shall be
given as provided in G.S. 1A-1, Rule 4(j) at
least 72 hours before the hearing. Notice
to other individuals shall be sent at least
72 hours before the hearing by first-class
mail postage prepaid to the individual’s
last known address. G.S. 1A-1, Rule 6 shall
not apply.
N.C. Gen. Stat. § 122C-264(c) (2013).
In the present case, the trial court stated at the end of
the 25 July 2013 hearing that “I’ve noted that concern that his
power of attorney was not given the notice that [respondent]
thinks they’re entitled to.” Nonetheless, the transcript of the
hearing reveals that both respondent and his attorney were
present at the hearing. Respondent was able to testify on his
own behalf. Most importantly, respondent has not argued or
demonstrated that the failure to receive notice of the hearing
resulted in his inability to adequately prepare for the hearing.
Because respondent has failed to establish that he was
prejudiced by the failure to receive notice of the 25 July 2013
hearing, his argument is overruled.
III. Conclusion
Where respondent has failed to demonstrate any prejudice by
the lack of a written record of his second examination by a
physician and by any failure to give respondent notice of the 25
July 2013 hearing, we affirm the order of the trial court.
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Affirmed.
Judges STEELMAN and ERVIN concur.