2007-387, IN RE GUARDIANSHIP OF G.S.

might be poisoned or tampered with in some way by the prison staff. When testing, including testing for contagious diseases, out of fear that the tests

Kelly A. Ayotte At the SPU, his delusional behavior intensified. G.S. refused medical Opinion Issued: July 11, 2008

No. 2007-387 Merrimack County Probate Court

attempts to work through prescriptions or treatment for discharge.” [and] uncooperative” behavior and his refusal to comply with “treatment and

around December 21, 2005, because of his increasingly “paranoid, irritable

behavior. He was transferred to the Secure Psychiatric Unit (SPU) on or Northern Correctional Facility (NCF) when he began to display delusional The record supports the following. G.S. was serving a sentence at the

, of Manchester (Edward C. Mosca

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

affirm. County Probate Court (Hampe, J.) appointing a guardian over his person. We HICKS, J. The appellant, G.S., appeals from the order of the Merrimack

orally), for the appellant. Mosca Law Office on the brief and to press. Errors may be reported by E-mail at the following address: general, orally), for the New Hampshire Department of Corrections. memorandum of law, and Suzanne M. Gorman, senior assistant attorney

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as welfare, safety, and rehabilitation or the prudent

p. 2 are suitable with respect to the incapacitated person’s

(c) There are no available alternative resources which

person; and

the property and financial affairs of the incapacitated

rehabilitation of the individual, or the management of providing continuing care, supervision, and (b) The guardianship is necessary as a means of

is incapacitated; and (a) The person for whom a guardian is to be appointed

four findings required by RSA 464-A:9, III (a)-(d); namely:

as guardian over his person. In the guardianship order, the court rendered the

(2004) that G.S. was incapacitated and appointed the office of public guardian On May 4, 2007, the probate court found, pursuant to RSA 464-A:9, III

Psychiatric Social Worker at the NCF; and G.S.

Denu, Senior Psychiatric Social Worker at the SPU; Heidi Guinen, Senior behavior at the SPU from Louise Coulombe, R.N, a nurse at the SPU; Nancy care. Additionally, the court heard testimony about G.S.’s mental health and

disorder impairs his ability to make informed decisions about his mental health

Furthermore, these mental health professionals agreed that G.S.’s delusional delusional disorder and does not believe that he has a mental illness. appointed psychologist, Eric Mart, Ph.D., testified that G.S. suffers from

treating psychiatrist at the SPU, Marcosa Santiago, M.D.; and a court-

G.S.’s treatment team. The director of the SPU, James Knoll, M.D.; G.S.’s

At the hearing on the petition, the probate court heard testimony from

guardian of incapacitated person on May 12, 2006.

safety, the New Hampshire Department of Corrections (DOC) filed a petition for

recommended treatment plan was likely to result in harm to his health and acknowledge his mental illness and cooperate with the treatment team’s treatment.” Because the SPU staff feared that G.S.’s continued refusal to

because he is adamant that he does not have a “mental condition that requires

diagnosis, however, and refuses to participate in mental health treatment G.S. was diagnosed with delusional disorder. He does not agree with his

to assault them.

were on duty, resisted their efforts to maintain control over him and threatened intended to harm him. He refused to leave his cell when those staff members staff. Additionally, G.S. expressed a fear that certain correctional officers

and often stored food in his cell until it spoiled and was discovered by prison prison meals were delivered to his cell, he expressed similar fears of tampering p. 3 “personal needs for food, clothing, shelter, health care or safety.” RSA 464-A:2,

A:2, XI is limited to harm resulting from an inability to provide for one’s

G.S. maintains that the “substantial harm” contemplated by RSA 464-

shelter, health care or safety. to provide for his personal needs for food, clothing, is likely to suffer substantial harm due to an inability

or refer to any person who has suffered, is suffering or

functional limitations. It shall be construed to mean legal, not a medical, disability and [is] measured by

defined as a

“substantial harm” and its subsequent finding of incapacity. “Incapacity” is

We begin by considering the probate court’s interpretation of the phrase

that no less restrictive alternative to guardianship exists.

evidence demonstrates beyond a reasonable doubt that he is incapacitated and

Additionally, G.S. argues that the probate court erred in finding that the psychiatric unit,” as opposed to assignment to a less restrictive level. (2004) with his continued assignment “in the most restricted unit of the secure

erroneous because the court equated “substantial harm” in RSA 464-A:2, XI

On appeal, G.S. contends that the probate court’s finding of incapacity is

restricted unit of the secure psychiatric unit.

continue to result in his incarceration in the most

harm because his incapacity has resulted and will

He has suffered and will continue to suffer substantial

unable to provide for his health care.

regarding his health care decisions and makes him

which prevents him from making informed decisions suffering from a mental illness, Delusional Disorder, [N]otwithstanding [G.S.’s] obvious intelligence, he is

Additionally, the court determined that:

proposed ward.

preservation of the civil rights and liberties of the

restrictive form of intervention consistent with the (d) The guardianship is appropriate as the least

affairs; and management of his or her property and financial ultimate findings with regard to paragraph III (a) through (d).” In re

p. 4 the probate court provide written illumination of all facts used in making its

statutory components beyond a reasonable doubt.” In re Guardianship of E.L. whether it supports the probate court’s finding that the guardian proved these

Additionally, “[n]othing in the plain language of the statute requires that

sufficiency of the evidence,” “[o]ur task is to review the record to determine

for . . . health care [and] safety.” RSA 464-A:2, XI. would likely result from G.S.’s inability to make informed health care decisions. and made a determination of incapacity based, in part, upon the harm that

restrictive alternative to guardianship exists. “Because [G.S.] challenges the findings beyond a reasonable doubt that G.S. is incapacitated and that no less We next consider whether the evidence supports the probate court’s

Id suffer “substantial harm due to [his] inability to provide for his personal needs that the probate court considered the factors delineated in RSA 464-A:2, XI

required for guardianship are reasonably supported by competent evidence.” contains competent evidence to support the conclusion that G.S. is likely to finding beyond a reasonable doubt that G.S. is incapacitated. The record him unable to provide for his health care.” This express finding demonstrates We first turn to whether the evidence supports the probate court’s from making informed decisions regarding his health care decisions and makes decision. The court specifically found that G.S.’s mental illness “prevents him we would have ruled differently.” In re Guardianship of E.L. A:4 (2007). Therefore, “we do not reweigh the evidence to determine whether plainly erroneous that such findings could not be reasonably made.” RSA 567-

that the probate court erroneously interpreted the guardianship statute. evidence of incapacity, as G.S. contends. Accordingly, we are not persuaded on his health care decisions does not mean that it “implicitly rejected” all other probate court’s actual or implicit factual findings on the statutory components

at 497. “The findings of fact of the judge of probate are final unless they are so the weight to be given to testimony.” In re Guardianship of Kapitula, 153 N.H. conflicts in testimony, measuring the credibility of witnesses, and determining . However, we “defer to a trial court’s judgment on such issues as resolving

restrictive unit of the SPU and the detrimental effect that his mental illness has 154 N.H. 292, 296 (2006). During this assessment, “we examine whether the

SPU, it was erroneous. instead rooted in his continued incarceration in the most restrictive unit of the

fact that the probate court explicitly mentioned G.S.’s confinement in the most Guardianship of Kapitula, 153 N.H. 492, 495 (2006). In the instant case, the

upon one of the defined categories of harm outlined in the statute and was XI. G.S. contends that since the court’s finding of incapacity was not based the drug “every day, two, three times a day.” Since ibuprofen can be toxic to

p. 5 ibuprofen “consistently for quite some time.” Coulombe testified that G.S. used

Furthermore, G.S. suffers from chronic back pain and has been taking

cholesterol or blood sugar levels.

negatively affect his medical health because blood tests uncover dangerous

Santiago testified that G.S.’s continued refusal to take lab tests might for fear that the blood extracted might be used in some malevolent way. tested for hepatitis A, B or C, or allow the treatment team to perform lab work

move up in levels of privilege in the prison. Additionally, G.S. refuses to be

and the prison requirement that he take the test in order to leave the SPU and despite his elevated risk of contracting this disease by living in a prison setting likely to suffer substantial harm. G.S. refuses to take a tuberculosis test

record permits a reasonable person to conclude that G.S.’s physical health is

In addition to the deterioration of his mental health, evidence in the

refusal of medical care.” undergoing “a slow, gradual progression of worsening paranoid symptoms and

harm is likely to occur in the absence of a medical guardian because G.S. is

inability to make informed health care decisions. Knoll explained that this Santiago both testified that G.S. is likely to suffer substantial harm due to his because of his refusal to work with the SPU treatment team. Knoll and

to the filing of the guardianship petition, G.S.’s condition had deteriorated

availability of treatments for this mental illness, Coulombe indicated that prior medication, in low doses, would effectively treat G.S.’s paranoia. Despite the disorder would benefit from medication. She explained that antipsychotic

Santiago testified that in her professional opinion, G.S.’s delusional

explanation and he now refuses to take this medication. medications, his paranoia impeded his ability to believe this rational might be delivered to him because the prison bought different lots of generic

Although G.S. was told that different shapes and sizes of the same medication

because of a delusional belief that it was being tampered with by prison staff. symptoms. Mart explained, however, that G.S. stopped taking the medication his treatment team of stress and anxiety and was prescribed Vistaril for these

Although G.S. refuses to acknowledge his diagnosis, he complained to

“becomes extremely irate and the conversation . . . deteriorates.” initiates conversations with G.S. about his mental health treatment, G.S.

believe that he suffers from this mental disease. Knoll testified that when he

condition because “he’s proceeding from a false premise,” as he does not the competing risks involved with accepting or rejecting treatment for this illness known as delusional disorder. They agreed that he is unable to weigh

Knoll, Santiago and Mart all testified that G.S. suffers from a psychiatric p. 6 [that] guardianship is the least restrictive form of intervention.” In re

available alternative resources exist that are suitable to [G.S.’s] needs, and to be imposed, the record must support beyond a reasonable doubt that “no exists. In addition to establishing G.S.’s incapacity, in order for a guardianship

beyond a reasonable doubt that no less restrictive alternative to guardianship

Lastly, we consider whether the DOC sustained its burden of proving

of incapacity beyond a reasonable doubt.

that the record, considered in its entirety, supports the probate court’s finding

the risk to his safety that results from his paranoid delusions. We conclude the negative effect that his mental illness has on his health care decisions, and The record contains evidence of the deterioration of G.S.’s mental health,

G.S. is suffering and lends support to the probate court’s ultimate holding.

guardianship; in this case, it is relevant evidence of the substantial harm that whether, in isolation, this level of restriction could support the imposition of a the most restricted unit of the secure psychiatric unit.” We need not decide

his incapacity has resulted and will continue to result in his incarceration in

that G.S. “has suffered and will continue to suffer substantial harm because parole and may serve the maximum for his sentence. The probate court found continuing to reject treatment, G.S. is negatively affecting his eligibility for

is prohibited from moving up in levels of privilege within the prison. By

cell for approximately 23 hours a day, isolated from the general population and keep him confined in the most secure unit in the SPU. He is restricted to his Finally, G.S.’s refusal to submit to a tuberculosis test forces the staff to

and “cause[s] him pain.”

the back.” Pulling away in this manner affects the tension in the handcuffs officers.” When G.S. pulls away from the officers, “[h]e’s usually handcuffed in correctional officers and becomes “very resistive and . . . pull[s] away from the

his personal safety in jeopardy because he misperceives the intentions of

that the defensive behavior that G.S. exhibits as a result of his delusions puts because of his paranoid ideation.” Santiago and Coulombe both explained [the] risk” to his safety. Santiago testified that G.S. “acts in . . . a defensive way

safety, Knoll testified that “it’s abundantly clear that his paranoia increases

his safety. When asked about the effect that G.S.’s illness has had on his The record also demonstrates that G.S.’s paranoid delusions endanger

Guardianship of E.L., 154 N.H. at 302 (citation omitted).

currently unknown.

effect that his prolonged use of this drug has had on his liver and kidneys is work, he is no longer entitled to receive this pain medication. Moreover, the renewing the prescription. As G.S. refused to comply with the request for lab

potential side effects. His doctor requested that G.S. submit to lab work before one’s liver and cause kidney damage, Santiago was concerned about these springing guardianship or a health care power of attorney.” In re Guardianship

p. 7 we have held that the individual “is not an appropriate candidate for a mental illness and has impaired judgment regarding his need for medication, viable options. Furthermore, when an individual has limited insight into his

Hampshire State Prison, many alternatives listed in RSA 464-A:2, II are not

uncontroverted. Moreover, in light of G.S.’s confinement in the SPU at the New

“[n]othing less restrictive than a guardianship.” This testimony was alternatives to guardianship in her opinion, she responded that there is When Santiago was asked whether there are any less restrictive

rejection of the alternatives to guardianship. conclude that there is sufficient evidence to support the probate court’s with his or her mental and physical limitations.” RSA 464-A:2, XIV (2004). We

enjoy the greatest amount of personal freedom and civil liberties consistent Affirmed

him or her with needed care and rehabilitative services, and that the ward shall imposed on the ward represents only those limitations necessary to provide evidence in the record supports the probate court’s guardianship order. restrictive form of intervention” is defined to mean “that the guardianship less restrictive alternative to guardianship exists. Accordingly, we hold that the

concurred. BRODERICK, C.J., and DALIANIS, DUGGAN and GALWAY, JJ.,

board and care residential care facilities.” RSA 464-A:2, II (2004). “Least unreasonable for the probate court to find beyond a reasonable doubt that no

citizen centers; powers of attorney, representative and protective payees; and In sum, taking the evidence as a whole, we conclude that it was not homemakers, home health aides, adult day care and multipurpose senior guardianship including, but not limited to, services such as visiting nurses, of E.L., 154 N.H. at 303.

“Available alternative resource” is defined to mean “alternatives to