In the Matter of the Civil Commitment of: Matthew Shawn Froehlich.

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-1437

In the Matter of the Civil Commitment of:
Matthew Shawn Froehlich.

Filed May 10, 2021
Affirmed
Bjorkman, Judge

Clearwater County District Court
File No. 15-PR-20-317

Tanner Holten, Reynolds, Harbott, Knutson & Larson, P.L.L.P., Crookston, Minnesota (for
appellant Matthew Froehlich)

Keith Ellison, Attorney General, Brandon Boese, Assistant Attorney General, St. Paul,
Minnesota (for respondent Haron Manwa, on behalf of the Minnesota Department of
Human Services)

Considered and decided by Bratvold, Presiding Judge; Bjorkman, Judge; and Bryan,
Judge.
SYLLABUS
The requirement in Minn. Stat. § 253B.092, subd. 6(d) (2020), that a party seeking
court authorization to administer neuroleptic medication to a patient subject to civil
commitment must prove the patient’s incapacity by a preponderance of the evidence does
not violate the patient’s right to privacy under the Minnesota Constitution.
OPINION
BJORKMAN, Judge
Appellant challenges the district court’s order authorizing the involuntary
administration of neuroleptic med ication, arguing that (1) the preponderance -of-the-

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evidence standard established in Minn. Stat. § 253B.092, subd. 6(d), for a determination of
incapacity violates his right to privacy under the Minnesota Constitution, and (2) the record
does not support th e court’s decision because his mental -health advance directive states
that he does not consent to neuroleptics. Because we discern no error in the district court’s
legal analysis and the record supports its factual findings, we affirm.
FACTS
Appellant Matthew Froehlich is a 41 -year-old man with schizophrenia spectrum
disorder and bipolar disorder. He has been civilly committed numerous times because of
his mental illness . His current civil com mitment began September 9, 2020 . Treatment
providers sought to administer neuroleptic medication, but Froehlich refused, denying any
mental illness. Because they believed Froehlich’s behavior posed a risk of harm to himself
and others, treatment providers administered the injectable neuroleptic Haldol to Froehlich
on an emergency basis. And o n September 14, respondent Haron Manwa, a psychiatric
nurse practitioner, filed a petition on behalf of the Minnesota Department of Human
Services, seeking court authorization to involuntarily administer neuroleptic medication to
Froehlich.
The district court appointed two examiners to assess Froehlich’s capacity to make
decisions regarding the use of neuroleptic medications and the appropriateness of the
proposed medications. Each examiner spoke with Froehlich a nd reviewed his medical
history, including his past civil commitments. At a hearing, both examiners and Manwa
opined that Froehlich lacks capacity to make decisions regarding the administration of
neuroleptic medication. Manwa also testified that he prop oses to continue treating

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Froehlich with Haldol until he stabilizes, and then transition to Latuda, which Froehlich
has responded to well in the past but requires his compliance because it can only be
administered orally . The examiners agreed that the pro posed medications are part of
standard treatment for Froehlich’s condition.
To counter this evidence, Froehlich presented his April 2012 mental-health advance
directive, in which he states, among other things, that in the event of incapacity, he “do[es]
not consent to any psychotropic medication.”1 And Froehlich’s mother testified. She
explained that she assisted Froehlich in completing the advance directive and believed that,
at that time, he had capacity to make decisions about his us e of neuroleptic medications.
She stated that Froehlich wanted to avoid using neuroleptic medication because of “adverse
reactions.” But she acknowledged that Froehlich had been taking Latuda until a disruption
with his prescription led him to halve his dosage and then discontinue the medication in
August 2020, precipitating his decompensation and this commitment. She also agreed that
Froehlich “needs to use some neuroleptics to get better.”
The district court determined by a preponderance of the evidenc e that Froehlich
currently lacks capacity to decide for himself whether to consent to neuroleptic medication
and did not clearly state a reasoned opposition to neuroleptics. The court also determined

1 The terms “neuroleptic” and “psychotropic” “are used interchangeably to describe a class
of drugs that result in sedation of the nervous system.” In re Civil Commitment of Breault,
942 N.W.2d 368, 371 n.2 (Minn. App. 2020) (citing Jarvis v. Levine, 418 N.W.2d 139, 140
n.1 (Minn. 1988)). Because the statutory provisions relevant to this appeal use the term
“neuroleptic” to refer to this class of medications, we use that term in this opinion. See
Minn. Stat. § 253B.092 (2020).

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that the treatment is reasonable and necessary , and authorized the involuntary
administration of Haldol and Latuda. Froehlich appeals.
ISSUES
I. Does the requirement in Minn. Stat. § 253B.092, subd. 6(d), that the petitioner prove
the patient’s incapacity by a preponderance of the evidence infringe on the patient’s
constitutional right to privacy?

II. Does the record support the decision to authorize neuroleptic medication?

ANALYSIS
Doctors often prescribe neuroleptic medication to treat patients who are civilly
committed because of mental illness. Breault, 942 N.W.2d at 373. Such medication can
improve cognitive function and reduce psychotic symptoms but may also “have serious
negative side effects.” Id.; see Jarvis, 418 N.W.2d at 145-46 (concluding that neuroleptic
medication constitutes “intrusive” treatment). The Minnesota Constitution affords each
individual, including civilly committed patients, a right to privacy that includes the right
of “a competent person” to refuse such intrusive medical treatment. Jarvis, 418 N.W.2d at
148. And the legislature established safeguards in Minn. Stat. § 253B.092 to protect this
right.
Principal among these safeguards is a “rebuttable presumption that a patient has the
capacity to make decisions regarding administration of neuroleptic medication .” Minn.
Stat. § 253B.092, subd . 5 (a). Absent an emergency, i f a patient refuses consent, the
medication “may not be administered without a court order.” Id., subd. 8(a); see id., subd.
3 (providing for short-term involuntary treatment with neuroleptics). A patient’s treatment
provider may petition for court authorization to administer neuroleptics despite the

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patient’s refusal. See id., subd. 8(a). A court “may” grant the petition if it finds that (1) the
patient lacks capacity and (2) analysis of statutory factors shows that a reasonable person
would choose to permit the administration of neuroleptic medication under the
circumstances. Id., subd. 8(c), (d) ; see id., subd. 7 (articulating factors district courts
consider when determining whether it is appropriate to authorize administration of
neuroleptic medication to a patient who lacks capacity).
I. The requirement in Minn. Stat. § 253B.092, subd. 6(d), that the petitioner
prove incapacity by a preponderance of the evidence does not violate a
patient’s right to privacy.

The constitutionality of a statute is a question of law that we review de novo. In re
Kindschy, 634 N.W.2d 723, 729 (Minn. App. 2001), review denied (Minn. Dec. 19, 2001).
We presume that statutes are constitutional, and the party challenging the constitutionality
of the statute “has the onus of establishing beyond a reasonable doubt that the statute
violates a claimed right.” In re Schmidt, 443 N.W.2d 824, 826 (Minn. 1989).
Under Minn. Stat. § 253B.092, subd. 6(d), the petitioner “has the burden of proving
incapacity by a preponderance of the evidence.” Froehlich argues that the statute is
unconstitutional because a clear-and-convincing-evidence standard is necessary to protect
the constitutional right to privacy recognized in Jarvis. We disagree.
The origin of the clear-and-convincing-evidence standard that Froehlich urges is In
re Peterson, in which we considered the neuroleptic-medication statute that the legislature
passed in response to Jarvis.2 446 N.W.2d 669, 671-72 (Minn. App. 1989), review denied

2 Jarvis mandated court authorization for involuntary administration of neuroleptic
medication, 418 N.W.2d at 148, and Schmidt rejected a constitutional challenge to the new

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(Minn. Dec. 1, 1989). That statute (the precursor to what is now Minn. Stat. § 253B.092)
did not prescribe a standard of proof for a petition er seeking court authorization to
administer neuroleptic medication. Id. at 672. We generally regard such an omission as a
signal that the legislature intended the preponderance-of-the-evidence standard to apply .
C.O. v. Doe, 757 N.W.2d 343, 353 (Minn. 2008). But mindful that the legislature required
clear and convincing evidence for initial commitment decisions , we concluded that “ the
legislature intended that persons seeking to administer neuroleptic medications must prove
by clear and convincing evidence that such medication is necessary .” Peterson, 446
N.W.2d at 672. We observed that this higher standard of proof reflects “the gravity of such
intrusive treatment and the necessity for extensive safeguards ” recognized in Jarvis. Id.
We did not address whether the clear-and-convincing-evidence standard also applies to the
question of a patient’s capacity to decide whether to take neuroleptic medication. See id.
Since Peterson, the legislature has substantially amended and clarified the law
regarding the administration of neuroleptic medication . See Breault, 942 N.W.2d at 375
(summarizing statutory changes, including 1997 enactment of Minn. Stat. § 253B.092). In
doing so, it did not prescribe a different standard for proving the necessity of neuroleptic
medication, effectively adopting the clear-and-convincing-evidence standard. See In re
Civil Commitment of Ince , 847 N.W.2d 13, 21 (Minn. 2014) (stating that judicial
construction of a statute becomes “part of the statute as though written therein” (quotation

statute, reasoning that it comported with Jarvis’s mandate, 443 N.W.2d at 827 -28. But
neither case prescribed a standard of proof for a court to apply in determining whether to
authorize involuntary treatment with neuroleptic medication.

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omitted)); Breault, 942 N.W.2d at 378 & n.11 (reciting the Peterson standard and noting
the legislature has not prescribed a different standard) . But for proving incapacity, the
legislature expressly prescribed the lower preponderance-of-the-evidence standard. Minn.
Stat. § 253B.092, subd. 6(d).3
In urging us to strike down this preponderance standard, Froehlich characterizes the
issue of incapacity as merely a subset—like medical necessity—of the broader question of
involuntary administration of neuroleptic medication. But they are distinct issues, with
distinct conseq uences. See Jarvis, 418 N.W.2d at 148 n.7 (distinguishing between a
patient’s “incompetence” and whether to forcibly administer neuroleptics). Only the
medical-necessity step of the statutory process affects a patient’s ability to control “the
integrity of [his] own body.” See id. at 148. Froehlich has not persuaded us that applying
the lower standard of proof on the issue of incapacity infringes on his right to privacy.
“[A] preponderance-of-the-evidence standard signals that the parties should ‘share
the risk of error in roughly equal fashion.’” C.O., 757 N.W.2d at 353 (quoting Addington
v. Texas, 441 U.S. 418, 423, 99 S. Ct. 1804, 1808 (1979) ). This is not appropriate when
the consequences of an erroneous decision are grave and imminent, such as with the

3 In In re Thulin, we affirmed a district court’s finding of incapacity, stating that the finding
was supported by “ clear and c onvincing evidence.” 660 N.W.2d 140, 145 (Minn. App.
2003). Numerous nonprecedential decisions h ave cited Thulin as authority for the
proposition that the standard of proof for determining the capacity question is, in fact, clear
and convincing evidence. The legislature plainly prescribed otherwise in Minn. Stat.
§ 253B.092, subd. 6(d). This court’s dictum in Thulin—where the issue of standard of
proof for a finding of incapacity was neither raised by the parties nor addressed by the
court—cannot override the plain language of the statute. See Buck Blacktop, Inc. v. Gary
Contracting & Trucking Co., 929 N.W.2d 12, 17 n.1 (Minn. App. 2019) (stating that a prior
opinion was “not precedential” on an issue that the parties did not appear to have raised).

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involuntary administration of neuroleptic medications. Peterson, 446 N.W.2d at 672;
accord Addington, 441 U.S. at 427, 99 S. Ct. at 1810 (“The individual should not be asked
to share equally with society the risk of error [in a civil-commitment proceeding] when the
possible injury to the individual is significantly greater than any possible harm to the
state.”). But it is appropriate when the consequences of an erroneous decision are minimal.
That is the case when the decision is temporary. See Uckun v. Minn . State Bd. of Med.
Practice, 733 N.W.2d 778, 784 (Minn. App. 2007) (concluding that preponderance
standard is appropriate for temporary su spension of medical license because the decision
can be reversed after a hearing, lessening the seriousness of consequences to the licensee).
The consequences of error are also relatively minimal when the decision is a preliminary
one—like the defendant’s competency in a criminal case. If that issue is disputed, the state
must first prove that the defendant is competent to stand trial. State v. Curtis, 921 N.W.2d
342, 348 (Minn. 2018). I f it succeeds, the defendant suffers no consequence unless the
state can also prove his guilt beyond a reasonable doubt. The standard of proof for the
preliminary question of competency is correspondingly low—a “fair preponderance of the
evidence.” Id. at 347 (quotation omitted).
Likewise, the decision whether a civilly committed patient lacks capacity to make
decisions about the use of neuroleptic medication is preliminary. As the supreme court
explained in Jarvis, “a finding of legal incompetence is a prerequisite to involuntary
medication with neuroleptics” but “ a mere finding of incompetence is insufficient to
warrant forcible medication.” 418 N.W.2d at 148 n.7. Rather, a district court “must still

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. . . determine the necessity and reasonableness of the treatment .” Id. The legislature
incorporated the supreme court’s guidance when enacting Minn. Stat. § 253B.092.
Under section 253B.092, i f the petitioner fails to prove that the patient lacks the
capacity to make a reasoned decision to refuse neuroleptic medication, or if the patient
clearly stated a reasoned d ecision when he had capacity to do so , the patient’s decision
controls. Minn. Stat. § 253B.092, subds. 4, 7(b), 8(d). If the petitioner succeeds in proving
incapacity, the patient suffers no consequence unless the petitioner also proves by clear
and convincing evidence that a reasonable person in the patient’s position would accept
neuroleptic medication. Id., subds. 7(c), 8(e); Breault, 942 N.W.2d at 378. And proof of
reasonableness depends on numerous factors, including “(1) the patient’ s family,
community, moral, religious, and social values; (2) the medical risks, benefits, 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 .” Minn. Stat.
§ 253B.092, subd. 7(c). This statutory framework and the heightened evidentiary standard
that must be met before neuroleptic medications may actually be administered minimize
the consequences of any error in determining the preliminary question of capacity .4
Accordingly, we conclude that Froehlich has not demonstrated that the preponderance
standard in Minn. Stat. § 253B.092, subd. 6(d), infringes on a patient’s constitutional right
to privacy.

4 Further, the patient suffers no collateral prejudice from an erroneous finding that he lacks
capacity to make a reasoned decision regarding neuroleptic medication because that finding
“must not be construed to determine the patient’s competence for any other purpose.”
Minn. Stat. § 253B.092, subd. 8(f).

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II. The record supports the district court’s decision to authorize involuntary
administration of neuroleptic medication.

Froehlich does not challenge the district court’s determination that administration
of neuroleptic medications was reasonable and necessary under the circumstances. Rather,
he argues that the district court clearly erred by finding he lacks capacity to make decisions
regarding neuroleptic medication and by failing to honor his advance directive. We review
the record in the light most favorable to the district court’s decision. Breault, 942 N.W.2d
at 378. And w e will not disturb the court’s factual findings unless they are clearly
erroneous. In re Civil Commitment of Raboin, 704 N.W.2d 767, 769 (Minn. App. 2005).
A. Froehlich lacks capacity.
A patient has the capacity to decide whether he consents to the administration of
neuroleptics if he:
(1) has an awarene ss of the nature of [his] situation,
including the reasons for hospitalization, and the possible
consequences of refusing treatment with neuroleptic
medications;
(2) has an understanding of treatment with neuroleptic
medications and the risks, benefits, and alternatives; and
(3) communicates verbally or nonverbally a clear choice
regarding treatment with neuroleptic medications that is a
reasoned one not based on a symptom of [his] mental illness,
even though it may not be in [his] best interests.

Minn. Stat. § 253B.092, subd. 5(b) (emphasis added). The patient is presumed to meet
these criteria, and mere disagreement with a treatment provider’s recommendation “is not
evidence of an unreasonable decision.” Id., subd. 5(a), (c). But because the statute requires
a patient to meet all three criteria, a petitioner can rebut the presumption by disproving any

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one of them. Id., subd. 5(b); see Peterson, 446 N.W.2d at 673 (“Those advocating the use
of involuntary neuroleptics need not disprove all three in order to prevail.”).
Froehlich asserted at oral argument in this court, but not in his appellate brief, that
the record does not support the district court’s finding that he lacks capacity. We generally
will not address an argument raised for the first time at oral argument . In re Stoneburner,
882 N.W.2d 200, 203 n.3 (Minn. 2016). But in light of Froehlich’s argument regarding
the standard of proof on this issue, we review the incapacity finding in the interests of
justice. See Minn. R. Civ. App. P. 103.04 (stating that an appellate court “may review any
other matter as the interest of justice may require”).
Both court-appointed examiners and Manwa uniformly testified that Froehlich lacks
awareness of his situation, refusing neuroleptics because he denies any mental illness and
believes the treatment providers want to experiment on him. They also testified that
Froehlich’s delusion “ can’t be disrupted by reasoned data.” For example, one of the
examiners noted that, by the time of the hearing, Froehlich had been under commitment
for several weeks, but “ there’s no reasoned kind of analysis on his part which should say
why am I here, what do I do to get out of here, what will help me. ” No record evidence
indicates otherwise. A patient who denies that he has a mental illness “in the face of good
evidence to the contrary lack[s] the capacity to decide rationally about medication.”
Peterson, 446 N.W.2d at 673 (quotation omitted). On this record, we discern no clear error
in the district court’s finding that Froehlich lacks the capacity to decide whether to consent
to treatment with neuroleptic medication.

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B. Froehlich did not clearly state, at a time of capacity, that he would refuse
neuroleptic medication.

If the district court finds that a patient lacks capacity, it must next consider whether
the patient “clearly stated what [he] would choose to do in this situation when [he] had the
capacity to make a reasoned decision.” Minn. Stat. § 253B.092, subd. 7(b). “Evidence of
the patient’ s wishes may include written instruments, ” such as a health -care power of
attorney or advance direc tive. Id. A clear statement of the patient’s wishes “must be
followed.” Id.; see Greene v. Comm’r of Minn. Dep’t of Human Servs. , 755 N.W.2d 713,
721 (Minn. 2008) (noting that “must” is mandatory). But if evidence of the patient’s wishes
is “conflicting or lacking,” the court must determine “what a reasonable person would do.”
Minn. Stat. § 253B.092, subd. 7(c).
Froehlich challenges the district court ’s finding that he did not clearly state his
wishes. He contends his 2012 advance directive “clearly described” his intent to refuse
neuroleptic medication.5 We disagree. Our careful review of Froehlich’s advance directive
reveals numerous inconsistencies regarding his wishes on the subject of neuroleptic
medication. The document states, “If I am not competent to consent to my own treatment
or to refuse medications or other treatment options relating to my mental health treatment,
I have initialed one of the following, which represents my wishes.” (Emphasis added.)
But Froehlich did not select just one; he selected five of the six options that followed. He
checked a box next to the following statement:

5 He also asserts that he had capacity to make decisions regarding neuroleptic medication
when he executed the advance directive. The district court did not expressly find
otherwise, and we assume as much for the purposes of our analysis.

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I specifically do not consent to any psychotropic
medication due to my understanding of the possible positive
and negative results of using such medication. I am choosing
an alternative form of treatment from psychotropic drugs based
on the long term studies highlighting greater recovery without
such use , and the studies h ighlighting probabl[e] negative
medical effects of using such medications. I understand that
psychotropic drugs may very well reduce the sympt oms (e.g.
thoughts, feelings and behaviors) that are unwanted, but that I
also understand there are other psychosocial means to reducing
these symptoms as well, some of which may take a bit longer
to realize, but also realize that will result in greater long term
benefit.

But he also checked the box next to a statement that suggests he is willing to accept some
medications: “I consent to the medications agreed to by my mental health care surr ogate
[his mother], after consulting with my treating physician and any other individuals my
surrogate may think appropriate.” And on the following page, he stated that if, “during a
stay in a psychiatric facility,” his behavior requires “emergency intervention,” he does not
want counseling, seclusion, music therapy, or physical restraint (the boxes for which are
unchecked), but prefers “medication such as Trilaton or Haldol at low dose to be used
temporarily or Valium to calm.” In short, Froehlich’s adva nce directive contains
conflicting, not clear, statements about whether and under what circumstances he would
take neuroleptic medication.
Moreover, Froehlich’s advance directive is only part of the evidence indicative of
his wishes regarding neuroleptic medication. See Minn. Stat. § 253B.092, subd. 7(b)
(providing that “[e]vidence of the patient’s wishes may include written instruments”). And
the other evidence of Froehlich’s wis hes is similarly conflicting. All four witnesses
discussed Froehlich’s pattern of using and q uitting such medication and his statements

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refusing to take it. Froehlich’s mother described concerns that she and Froehlich share
about negative side effects, but she also candidly acknowledged Froehlich needs these
medications in order to function. And it is undisputed that Froehlich has independently
taken neuroleptic medication since signing his 2012 advance directive —as recently as
August 2020. On this record, we discern no clear error in the district court’s determination
that Froehlich did not clearly state, at a time when he had capacity, that he did not wish to
be treated with neuroleptic medication.
DECISION
We conclude that the requirement in Minn. Stat. § 253B.092, subd. 6(d), that the
petitioner prove the patient’s incapacity by a preponderance of the evidence does not
infringe on the patient’s constitutional right to privacy. The district court correctly applied
that standard, and the record supports its findings that Froehlich lacks capacity and did not
clearly state at a time of capacity that he opposes neuroleptic medication.
Affirmed.