In re the Matter of the Civil Commitment of:

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1430

In re the Matter of the Civil Commitment of:

Wayne Joseph Averett.

Filed February 24, 2020
Affirmed
Cochran, Judge

Hennepin County District Court
File No. 27-P0-97-060036

Michael C. Hager, Minneapolis, Minnesota (for appellant)

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Atto rney, John L. Kirwin, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Considered and decided by Cochran, Presiding Judge; Bjorkman, Judge; and
Reilly, Judge.
U N P U B L I S H E D O P I N I O N
COCHRAN, Judge
Appellant Wayne Joseph Averett challenges the district court’ s order authorizing
the involuntary administration of neuroleptic medications. Because the district court’s
findings are supported by the record and satisfy the relevant statutory criteria, we affirm.

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FACTS
Appellant Wayne Joseph Averett was ci villy committed as mentally ill and
dangerous in 1997. Averett was provisionally discharged from the commitment in 2009,
but the provisional discharge was revoked shortly thereafter. He remains civilly committed
as mentally ill and dangerous.
In June 2019, Averett’s physician at the St. Peter Regional Treatment Center filed a
petition under Minn. Stat. § 253B.092 (2018 ) requesting an order authorizing the
administration of neuroleptic medications over Averett’s refusal. The physician asked the
district court to authorize the administration of several neuroleptic medications, including
Seroquel.1 The district court scheduled a heari ng to address the petition and appointed a
psychologist to conduct an examination for the proceedings.
To support the petition requesting a court order, the state submitted several exhibits.
The exhibits described that Averett had suffe red a “progressive decompensation” of his
mental health over the previous month. The exhibits further described that Averett engaged
in very odd behavior and his thought processes had become “increasingly more illogical
and disorganized.”
Throughout the “progressive decomp ensation,” Averett resisted certain
medications—particularly Seroquel—based on his belief that the medications caused a
“paradoxical effect,” meaning that they caused the symptoms that they were intended to

1 The physician indicated that only two of the medications would be used at any one time
but he requested authorization for five medications so that he could determine a medication
regimen that works for Averett.

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treat. Averett eventually acquiesced to the medical staff’s request that he take Seroquel to
stabilize his mental health, but he continued to express his objection that the medications
have a “paradoxical effect.” Averett also maintained that he was stable.
Averett ultimately assaulted a staff me mber, causing medical staff to declare a
behavioral emergency. Duri ng the behavioral emergency, an on-call provider increased
Averett’s dose of Seroquel. The physician attempted to di scuss medication options with
Averett, and discuss the administration of Seroquel, but Averett was either unable or
unwilling to have a discussion with medical staff about alternative medication options.
When Averett’s condition improved and the behavioral emergency was terminated,
the physician discontinued the administration of Seroquel based on Averett’s objection to
the medication. The physician continued to attempt to discuss with Averett the benefits of
taking neuroleptic medications and the risks of another deterior ation of his mental health
without the additional medications. But Av erett maintained his position that the
medication regimen that he had previously ta ken (and that he was taking before the
progressive decompensation) was sufficient to treat his mental health issues.
Consequently, the physician sought a court order to administer the neuroleptic medications
that Averett refused.
Both the physician and the court-appointed psychologist opined that Averett was
not competent to make a decision regardin g the use of neuroleptic medications. The
physician cited Averett’s inability to engage in discussions ab out medication, his lack of
appreciation for the severity of his symptoms, and his insistence that his prior medication
regimen is sufficient—even when confronted with evidence that other medication may be

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more effective. The court-appointed psychologist noted a similar basis for her conclusion,
and opined that Averett did not understand the consequences of refusing to take neuroleptic
medications and that Averett’s refusal to take the medications was based on a delusional
belief that they cause a “paradoxical effect.”
Averett testified at the hearing that Seroquel causes him a “paradoxical effect” and
that in 2009 his previous physician had descri bed the “paradoxical effect” to him. He
claimed that he did not have any symptoms or problems since 2010. He testified that during
the most recent incident, the Se roquel that he took caused his symptoms to worsen, and
that the physician administered the medication to him despite knowing that it would cause
him to decline. He objected to altering his medication regimen and maintained that his
previous medication regimen was effective. He denied assaulting anyone at the hospital.
The physician testified in rebuttal that Averett’s medical record was not consistent
with the purported “paradoxical effect” and that he was unaware of any “paradoxical
effect” of the medications he sought to administer. He also testified that Averett’s relapse
symptoms emerged before Averett started taking Seroquel.
The district court issued a written order fi nding that Averett lacks capacity to give
or withhold consent for the use of neurolep tic medication, and concluding that it is
appropriate to authorize the use of neurolep tic medications without Averett’s consent.
Consequently, the district court entered an order authorizing Av erett’s physician to
administer the medications identified in the petition for the duration of Averett’s
commitment, but no longer than two years without additional review by the court.
This appeal follows.

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D E C I S I O N
When reviewing a district court’s order to administer neuroleptic medication, “[w]e
review the record in the light most favorable to the district court’s decision” and “affirm
the district court’s findings unless they are clearly erroneous.” In re Civil Commitment of
Raboin, 704 N.W.2d 767, 769 (Minn. App. 2005); see also In re Thulin, 660 N.W.2d 140,
146 (Minn. App. 2003) (affirming the district court’s incapacity determination because the
finding of incapacity was not clearly erroneous ). “When the findings of fact rest almost
entirely on expert testimony, th e district court’s evaluation of credibility is particularly
significant.” In re Civil Commitment of Janckila , 657 N.W.2d . 899, 904 (Minn.
App. 2003).
Averett argues on appeal that the reco rd does not support the district court’s
determination that he lacks capacity to give or withhold consent for the use of neuroleptic
medication. Averett also maintains that the record does not support the district court’s
determination that the treatment of his ment al illness using Sero quel is necessary and
reasonable. We address each issue in turn.
I. The record supports the district court’s determination that Averett lacks the
capacity to decide whether to take neuroleptic medications.

If a person who is civilly committed as ment ally ill and dangerous refuses to take
neuroleptic medications, the neuroleptic medi cations may not be administered without a
court order, absent an emergency. Minn. Stat . § 253B.092, subd. 8(a). The district court
must hold a hearing upon receiving a written request to administer the medication, and at
the hearing the district court must decide wh ether the patient has the capacity to decide

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whether to take the medication and whethe r the administration of the medication is
appropriate considering seve ral statutory standards. Id., subd. 8. Our caselaw provides
that the petitioner must prove the patient’s incapacity to consent to medication by clear and
convincing evidence. See Thulin, 660 N.W.2d at 145 (“The record provides clear and
convincing evidence to suppor t the district court’s finding that appellant lacked the
capacity to make determinations concerning neuroleptic medications.”).2
If the district court finds that the patient ha s the capacity to decide whether to take
the medications, “the treating facility may not administer medication without the patient’s
informed written consent or w ithout the declaration of an emergency. . . .” Minn.
Stat. § 253B.092, subd. 8(d). If the district court finds that the patient lacks capacity, it
must consider the statutory standards to dete rmine whether it is appropriate to administer
the medication without the patient’s consent. Id., subd. 8(e).
Averett first argues that the record does not support the district court’s finding that
he lacked capacity to decide whether to take neuroleptic medications. Minnesota Statutes
section 253B.092, subd. 5, guides the district court in determining whether a patient lacks
capacity to make a decision regarding neuroleptic medication. “A patient is presumed to
have capacity to make decisions regarding th e administration of neuroleptic medication.”
Id., subd. 5(a). In determining capacity, the district court must consider:

2 Minnesota Statutes section 253B.092, subd. 6(d) provides that the petitioner must prove
incapacity only by a prepondera nce of the evidence. But bo th parties cite Minnesota
appellate precedent that applies the clear-and- convincing standard. Because our caselaw
supports the application of the clear-and-conv incing standard, and because we ultimately
conclude that the evidence in the record supports the distri ct court’s decision under this
more stringent standard, we need not address this discrepancy.

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(1) whether the person demo nstrates an awareness of
the nature of the person’s situa tion, including the reasons for
hospitalization, and the possible consequences of refusing
treatment with neuroleptic medications;
(2) whether the person demonstrates an understanding
of treatment with neuroleptic medications and the risks,
benefits, and alternatives; and
(3) whether the person communicates verbally or
nonverbally a clear choice regarding treatment with
neuroleptic medications that is a reasoned one not based on
delusion, even though it may not be in the person’s best
interests.

Disagreement with the physician’s recommendation is
not evidence of an unreasonable decision.

Id., subd. 5(b).
Averett argues that the district court’s finding of incapacity is erroneous because
Averett was able to “rep eat the psychiatrist’s view of the facts; in other words, [he had]
awareness of, not agreement wi th, the proposed treatment, the expected benefits and
possible risks of the treatment.” See In re Lambert , 437 N.W.2d 106, 108 (Minn.
App. 1989), review denied (Minn. May 12, 1989). The st ate notes that awareness is a
necessary, but not a sufficient condition to finding capacity. The state argues that the
evidence supports the district court’s finding of incapacity because Averett demonstrated
a lack of understanding of the expected risks, benefits, and alternatives to Seroquel and
expressed a delusional reason for refusing th e medication—his belief that Seroquel had a
“paradoxical effect” on his mental state.
We conclude that the district court’s ca pacity determination is amply supported by
the evidence in the reco rd. We agree with the state that Averett’s mere awareness of the
proposed treatment is not sufficient, alone , to overcome the overwhelming evidence

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introduced by the state that Av erett lacked capacity. The district court’s findings that
Averett “does not have the ability to unders tand and use information about his mental
illness, its symptoms, and treatment,” that Averett erroneously believes that his prior
medication regimen is the only regimen that is effective, and that Averett “does not have
sufficient insight to understand the consequences of not taking the prescribed medications,”
are all soundly supported by evidence in the record and support the district court’s finding
that Averett lacks capacity to decide whether to take the proposed medications—including
Seroquel. Moreover, Averett’s own testimon y is consistent with the court-appointed
psychologist’s and the physician’s indication that Averett’s refusal to take certain
medication is based on his delusional belief that the medication causes a “paradoxical
effect.”
Because the record amply supports the di strict court’s findings regarding Averett’s
lack of capacity, and because the district court properly considered the relevant factors in
determining capacity, we conclude that the district court’s capacity determination was not
erroneous.
II. The district court did not err by de termining that the administration of
Seroquel was appropriate despite the absence of Averett’s consent.

Averett next makes a brief argument that th e district court erred by authorizing the
administration of Seroquel because the us e of the medication was not “sufficiently
necessary and reasonable,” and that there is “no basis to order his compliance with
medication when he has been stabilized and faithfully compliant for decades with proposed

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medical regimes.” We are not persuaded that the district court erred in determining that
administration of Seroquel was appropriate.
If the district court determines that the patient lacks capacity to make decisions
regarding the administration of the neuroleptic medication, it must consider the factors
listed in Minn. Stat. § 253B.092, subd. 7(b)-(c ), to determine whether to enter an order
authorizing the administration of the medicati on. Minn. Stat. § 253B.092, subd. 7(a).
Those standards are:
(b) If the person clearly stated what the person would
choose to do in this situation when the person had the capacity
to make a reasoned decision, the person’s wishes must be
followed. . . .

(c) If evidence of the person’s wishes regarding the
administration of neuroleptic medications is conflicting or
lacking, the decision must be based on what a reasonable
person would do, taking into consideration:
(1) the person’s family, co mmunity, moral, religious,
and social values;
(2) the medical risks, benef its, and alternatives to the
proposed treatment;
(3) past efficacy and any extenuating circumstances of
past use of neuroleptic medications; and
(4) any other relevant factors.

Id., subd. 7(b)-(c).
There was no evidence introduced to su pport that Averett expressed a choice
regarding these neuroleptic medications at a time when he had the capacity to make a
reasoned choice. There was also no eviden ce of Averett’s fami ly, community, moral,
religious, or social values. Thus, the dist rict court based its conclusion on whether a
reasonable person would take th e medication considering the risks and benefits of the

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medication and the past efficacy of neuroleptic medications to treat Averett. The district
court found that the use of neuroleptic medi cations is widely accepted by the medical
community. It considered the purpose of the medications and their various side effects,
including adverse side effects that Avere tt had experienced when taking neuroleptic
medications in the past. The district court also considered the alternative proposal put forth
by Averett—not altering Averett’s medicati on regimen—but found that Averett had
decompensated in the past w ithout additional neuroleptic medication and that Averett
would benefit from the use of the medications. Ultimately, the district court concluded that
“[t]he benefits to [Averett] from the use of neuroleptic medication to treat his mental illness
outweigh the risks from that treatment and justify the intrusion into his privacy as needed
to effect the medication therapy without his informed consent.”
The district court’s findings related to the statutory factors are supported by the
medical records, the testimony of the physicia n, and the court-appoi nted psychologist’s
report and are not clearly erroneous. The district court appropriately applied the statutory
factors in determining that it was appropri ate to authorize the administration of the
neuroleptic medications under Minn. Stat. § 253B.092, including Seroquel.
Because the record amply supports the di strict court’s findings regarding Averett’s
lack of capacity and the appropriateness of administering neuroleptic medications in the
absence of consent, and because the district court appropriately considered the relevant
factors enumerated in Minn. Stat. § 253B.092 in arriving at both fi ndings, we discern no
basis to reverse the district court’s order.
Affirmed.