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decided: April 28, 1977.



Michael L. Rosenfield, Berlin, Boas, Isaacson, Logan, Rosenfield & Sharon, Pittsburgh, for appellant.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy and Manderino, JJ. Former Chief Justice Jones did not participate in the decision of this case. Nix, J., did not participate in the consideration or decision of this case. Roberts, J., filed a concurring opinion. Manderino, J., filed a dissenting opinion.

Author: Eagen

[ 472 Pa. Page 391]


On October 16, 1975, appellant Albert L. Niccoli, who was then 54 years of age, divorced, and living with his 86-year-old father and next door to his 56-year-old brother, appellee Emil V. Niccoli, voluntarily signed himself into the Leech Farm Veterans Administration Hospital [Leech Farm] as a psychiatric patient after a violent physical altercation with his brother over the type of food that ought to be given to their invalid father. On October 23, 1975, while Albert Niccoli was still a patient at Leech Farm, Emil Niccoli filed a petition in the Orphans' Court Division of the Court of Common Pleas of Allegheny County seeking the civil commitment of his brother pursuant to section 406 of the Mental Health and Mental Retardation Act of 1966 [the Act].*fn1 The petition

[ 472 Pa. Page 392]

    represented: "Petitioner believes that Respondent is in need of treatment because of his conduct and actions which constitute not only a disturbance and threat to members of his immediate family and to the public, but also a threat to Respondent's own well-being, and that his examination or commitment to a proper facility in accordance with the provisions of said Act is necessary for his welfare and protection." It further represented that "Petitioner has made efforts to individually secure care and treatment for Respondent, but Respondent has refused to undergo any treatment." The petition also suggested that Respondent be committed to Western Psychiatric Institute and Clinic [Western]. The court directed the sheriff to produce Albert Niccoli for a hearing on October 28. Appellee's counsel noted on the sheriff's form that appellant was to be picked up at Leech Farm.

The scheduled hearing was conducted on that date with the participation of appellant and his court-appointed counsel. Appellee testified that on October 16 appellant had attacked him with a crowbar after objecting to the soup he was feeding their father and that he, appellee, was subsequently cut in a struggle over a knife that was lying on the floor, that his brother had physically attacked him on a number of previous occasions, that appellant

[ 472 Pa. Page 393]

    had frequently threatened harm to both him and their father and was frequently destructive in the house and given to throwing out food he considered unhealthy. Appellee further testified that his brother had previously been hospitalized as a mental patient on a number of occasions, but that he had refused voluntary out-patient treatment. He did not testify that appellant had voluntarily signed himself into Leech Farm and that he had remained there until the hearing, nor were these facts brought out on cross-examination. Appellant testified in his own behalf, but he appeared to have difficulty focusing on recent events and instead continuously returned in a rambling fashion to the past history of his family. At the conclusion of appellant's testimony, the court ordered him returned to Leech Farm overnight and then taken on the following day to Western to be examined and observed.*fn2 A second hearing was scheduled for November 7.

[ 472 Pa. Page 394]

At the November 7 hearing Dr. Stanley Peal testified that he had examined and observed appellant regularly during his stay at Western, that he had diagnosed appellant as suffering from a "manic depressive psychosis" which lessened his "self control, judgment and discretion," that he required in-patient care, and that his condition presently made him dangerous to himself and others. Dr. Peal further testified that appellant recognized his need for further hospital treatment, that he was willing to return to the veterans hospital on a voluntary commitment, and that Leech Farm was willing to accept him as a voluntary patient, but the doctor also stated that "even with his good intentions at this time" it was unlikely that appellant would remain willing to stay at the hospital voluntarily because of an inability to carry out his intentions characteristic of his mental disorder. The hearing judge also admitted into evidence, over appellant's objection, a written evaluation by another examining physician stating that appellant "should return to Leech Farm where he is willing to go and receive the necessary help."*fn3 Appellant himself testified that he felt he would benefit from further treatment at Leech Farm, that he was willing to sign himself in voluntarily and accept the treatment recommended by the doctors there, and that he had done so previously before he was brought to court. Appellant also called as a witness Michael Gildea of the county mental health department, who testified that it was the position of the county that when a facility is willing to accept a patient on a voluntary basis, there is no basis for an involuntary commitment

[ 472 Pa. Page 395]

    under section 406 except in "extraordinary circumstances." The hearing judge, nevertheless, indicated that he would rely solely on the testimony of Dr. Peal, and he proceeded to commit appellant to Leech Farm involuntarily for an indefinite term with no provision for subsequent judicial review. After the court en banc dismissed appellant's exceptions, this direct appeal followed.

Instantly, appellant argues that the hearing court deprived him of due process of law by rejecting the concept of "least restrictive alternative" and committing him involuntarily to an indefinite term of hospitalization despite his willingness to be hospitalized on a voluntary basis. Since he admits his desire and does not dispute his need for hospitalization and treatment or challenge the constitutionality of section 406 itself, we need not here determine whether the evidence of "mental disability" adduced was sufficient under the statutory terms or the constitutional requirements. Nor need we ascertain the full extent of due process required in civil commitment proceedings.*fn4 We observe, however, that although

[ 472 Pa. Page 396]

    section 102 of the Act (50 P.S. § 4102) defines "mental disability" as "any mental illness, mental impairment, mental retardation, or mental deficiency, which so lessens the capacity of a person to use his customary self-control, judgment and discretion in the conduct of his affairs and social relations as to make it necessary or advisable for him to be under care as provided in this Act," the Supreme Court of the United States has recently indicated that there are more stringent limitations on a state's civil commitment power.*fn5

Appellant's "least restrictive alternative" theory is premised upon an earlier pronouncement by the Supreme Court in Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231 (1960):

"In a series of decisions this Court has held that, even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose." [Footnotes omitted.]

The analytical weight given by the Supreme Court to the "least restrictive alternative" concept, however, has varied greatly according to the competing interests involved in a given case, and its status as a constitutional requirement in civil commitment proceedings has not been firmly

[ 472 Pa. Page 397]

    established. See generally D. Chambers, Alternatives to Civil Commitment of the Mentally Ill: Practical Guides and Constitutional Imperatives, 70 Mich.L.Rev. 1108, 1145-68 (1972). Indeed, in Sanchez v. New Mexico, 396 U.S. 276, 90 S.Ct. 588, 24 L.Ed.2d 469 (1970), the Supreme Court dismissed "for want of a substantial federal question" an appeal from a decision by the New Mexico Supreme Court*fn6 rejecting the principle as a constitutional requirement. Whatever the precedential significance of the one-sentence dismissal in Sanchez, a number of federal courts in the course of adjudicating constitutional challenges to various state commitment statutes and procedures have subsequently required those seeking or justifying commitment to explore or disprove the possibility of less restrictive alternatives to total involuntary commitment.*fn7

Instantly, however, we need not determine whether the Federal Constitution requires us to accept appellant's position, since we conclude that it is supported by the Act itself, which specifically provides for both voluntary admission and voluntary commitment. Section 401(a) of the Act (50 P.S. § 4401) states: "Any mentally disabled person who desires care in a facility may make appropriate application directly to any facility willing and able to receive him, or to the administrator of the county where the person is or resides, for placement in a facility." Section 402 (50 P.S. § 4402) provides in pertinent part

[ 472 Pa. Page 398]

    that "[a]ny person over eighteen years of age" may make "[a]pplication for voluntary admission to a facility for examination, treatment and care," and that the director of the facility then "shall cause an examination to be made" and "[i]f it is determined that the person named in the application is in need of care or observation, he may be admitted;" a person so admitted "shall be free to withdraw at any time." Section 403 (50 P.S. § 4403) provides that a person over eighteen years of age may make a written application for voluntary commitment to a facility:

"(b) The application shall be in writing, signed by the applicant in the presence of at least one witness. When an application is made, the director of the facility shall cause an examination to be made. If it is determined that the person named in the application is in need of care or observation, he shall be committed for a period not to exceed thirty days. Successive applications for continued voluntary commitment may be made for successive periods not to exceed thirty days each, so long as care or observation is necessary.

"(c) No person voluntarily committed shall be detained for more than ten days after he has given written notice to the director of his intention or desire to leave the facility. . . ."

Both section 402(d) and section 403(d) mandate review "at least annually" by a professional committee of the facility "to determine whether continued care is necessary." Compare MHPA, §§ 201-7, 50 P.S. §§ 7201-7.

We thus find in the Act a clear legislative intent not merely to sanction but to encourage necessary psychiatric care and treatment on a voluntary basis to the extent feasible.*fn8 A similar purpose underlay comparable

[ 472 Pa. Page 399]

    congressional legislation for the District of Columbia. In re Ballay, 157 U.S.App.D.C. 59, 71, 482 F.2d 648, 660-64 (1973). The advantages of voluntary over involuntary hospitalization are well-recognized:

"The advantages of voluntary admissions flow from the absence of compulsion in the initiation of psychiatric treatment. Psychiatric evidence indicates that a patient who recognizes his condition and voluntarily undertakes therapy is more likely to be rehabilitated than one upon whom treatment is forced. Moreover, the consensual relationship between the voluntary patient and the hospital may obviate the legal problems of involuntary commitment -- the state's power to infringe fundamental liberties, the procedures by which such power may be exercised, the permissible conditions of hospitalization, and the ability of the patient to obtain release." [Footnotes omitted.]

Developments in the Law, Civil Commitment of the Mentally Ill, 87 Harv.L.Rev. 1190, 1399 (1974). Clearly, however, these advantages are less likely to be realized and persons who recognize their need for hospitalization are less likely to seek it if, after they have applied for voluntary admission or commitment and have been accepted by an appropriate facility on a voluntary basis, they then can be subjected to involuntary commitment without a significant change in their condition, the perception of their condition, or their willingness to be hospitalized.

Aside from the social stigma and psychological complications which may result when a person who voluntarily chooses to be hospitalized is involuntarily committed, a person committed under section 406 for an indefinite term is also at a considerable procedural disadvantage should he subsequently seek his release. While one voluntarily admitted is free to leave at will and one voluntarily committed under section 403 is detained for a term not to exceed thirty days with provision for no more

[ 472 Pa. Page 400]

    than ten days additional detention after he gives written notice of his intention to leave, the release of one committed under section 406 is left to the discretion of the facility director or the Secretary of the Department of Public Welfare, see sections 418-20 of the Act (50 P.S. §§ 4418-20), unless the person committed petitions the court for a habeas corpus discharge, pursuant to section 426 (50 P.S. § 4426).*fn9 In contrast to section 406, both sections 402 and 403 mandate periodic review by the facility of the patient's need for continued hospitalization; if a voluntary patient wishes to leave and the director concludes that continued confinement is necessary, the director must initiate commitment proceedings.

In our view, the Act does not contemplate the drastic abridgment involved in involuntary commitment of the liberty of a person who has been neither accused nor convicted of a crime*fn10 if its ends can be accomplished on a voluntary basis.*fn11 Although section 406

[ 472 Pa. Page 401]

    does not expressly limit its application to persons unwilling or incapable of deciding to be hospitalized on a voluntary basis, we believe that since appellant himself here sought and was accepted for treatment at an appropriate facility on a voluntary basis and remained there without manifesting any apparent intention to leave, an involuntary commitment under section 406 should only have been ordered upon a satisfactory showing that the voluntary arrangement mutually agreed upon by him and the facility was inadequate to achieve the legitimate purposes of the Act.*fn12

Appellee, nevertheless, argues that it was within the discretion of the hearing court not to credit appellant's testimony of his willingness to undergo voluntary hospitalization and treatment, and instead to rely on Dr. Peal's testimony that appellant's mental disability made it unlikely that he would be able to adhere to his stated intentions. Dr. Peal did so testify, although his predictions about appellant's future behavior fell considerably short of certitude.*fn13 We need not here determine whether

[ 472 Pa. Page 402]

    such speculative testimony would have been sufficient to outweigh appellant's statement of his willingness to be a voluntary patient in the absence of other relevant evidence bearing on the credibility of appellant's intentions,*fn14 since such other evidence was not here lacking.*fn15 In addition to appellant's own testimony, there was uncontradicted evidence that shortly after his fight with his brother on October 16 appellant had voluntarily signed himself into Leech Farm and had been accepted by that facility on a voluntary basis, that he had remained there as a voluntary patient until he was removed more than a week later by court order pursuant to

[ 472 Pa. Page 403]

    the instant commitment proceeding, and that the facility remained willing to treat him on a voluntary basis.

In our view, the hearing court erred in disregarding this uncontroverted evidence. We cannot approve a proceeding in which a person who has apparently recognized his need for care and treatment at an appropriate facility is, on the basis of a less than accurate petition for commitment,*fn16 removed from that facility while apparently in the process of receiving that care and treatment, sent to another facility for examination and observation without regard to the examination and observation he has been receiving, and then committed to the original facility on an involuntary basis without regard to the fact that that facility's staff remains willing to treat him on a voluntary basis and presumably believes him capable of being treated on that basis. From this record, we conclude that, before committing him involuntarily, the hearing court should have determined whether or not the proposed voluntary arrangement between appellant and Leech Farm would have been adequate to achieve the legitimate purposes of the Act.*fn17

[ 472 Pa. Page 404]

Because of our disposition of this appeal, we refrain from addressing ourselves to appellant's contention that the court below also erred in admitting into evidence the written report of Dr. Ehler without her also being present to testify.

The decree of the hearing court is vacated, and the record is remanded for further proceedings consistent with this opinion and the provisions of MHPA to the extent applicable.

ROBERTS, Justice, concurring.

I agree with the majority that the trial court did not apply the correct standard in determining whether appellant

[ 472 Pa. Page 405]

    should have been involuntarily committed under the Mental Health and Mental Retardation Act of 1966, Act of October 20, 1966, P.L. 96, §§ 101 et seq., 50 P.S. §§ 4401 et seq. (1969).

However, subsequent to the involuntary commitment proceedings here, the Legislature enacted the Mental Health Procedures Act of 1976, Act of July 9, 1976, §§ 101 et seq., 50 P.S. § 7101 et seq. Although I believe that the new statute may apply to appellant on appeal, I need express no opinion as to the proper disposition under the new statute. In my view on remand, the trial court should apply the Mental Health Procedures Act of 1976 in determining whether appellant should be involuntarily committed.

MANDERINO, Justice, dissenting.

I disagree with the majority and with the concurring opinion of Mr. Justice Roberts in the conclusion that this case must be remanded. If the correct test to apply in an involuntary commitment is whether the individual presents a danger to himself or others, I would conclude, as a matter of law, that an individual currently receiving treatment under a voluntary commitment cannot possibly present any greater danger to himself or others than would be present under the terms of an involuntary commitment. In other words, simply changing the terms of commitment from voluntary to involuntary would not eliminate any dangers that have not been controlled under the terms of a voluntary commitment.

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