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decided: May 18, 1979.


No. 1799 October Term, 1978, Appeal from the Order of the Court of Common Pleas Civil Division, Lancaster County, Commitment Docket No. 2, Page 309, Dated June 12, 1978.


Deborah H. Thomson, Lancaster, for appellant.

William E. Chillas, Lancaster, for appellee.

Price, Spaeth and Watkins, JJ. Spaeth, J., files a concurring and dissenting opinion.

Author: Watkins

[ 266 Pa. Super. Page 280]

This case comes to us on appeal from the Court of Common Pleas of Lancaster County, Civil Division, and involves appellant's claim that the court below improperly committed her to a hospital for involuntary emergency psychiatric treatment.

[ 266 Pa. Super. Page 281]

On June 3, 1978, the appellant was committed to the Psychiatric Ward of St. Joseph's Hospital in Lancaster for emergency involuntary treatment, pursuant to a petition filed by appellant's husband. On June 7, 1978, a hearing was held before a mental health review officer pursuant to 50 P.S. 7303, a section of the "Mental Health Procedures Act of July 9, 1976" which Act became effective September 9, 1976. Said Section provides for an informal hearing at which the person who is alleged to be in need of psychiatric treatment is afforded an attorney and which hearing is conducted by a Judge of the Court of Common Pleas or a mental health review officer. At the conclusion of the informal hearing the judge or review officer must make a finding as to whether the person is in need of continued involuntary treatment and if he finds that such treatment is needed he must so certify. Under this section the person may be involuntarily committed until he is no longer "severely mentally disabled or in need of treatment", and in any event the person can be committed for no longer than twenty (20) days unless he is committed pursuant to 50 P.S. 7202 or 50 P.S. 7304, 50 P.S. 7303(h).

After the June 17, 1978, informal hearing the mental health review officer who heard the testimony issued a certification for extended involuntary treatment for a period of twenty (20) days, the maximum period provided for in the Act. Appellant then appealed to the Lancaster County Court of Common Pleas for review of the certification pursuant to 50 P.S. 7303(g) which provides for a review of any certification issued by a mental health officer by a judge. On June 12, 1978 Judge Anthony Appel of the Court of Common Pleas of Lancaster County held a hearing and affirmed the certification. On June 13, 1978, appellant filed an appeal to our Court and filed an Application for Stay Pending Appeal on June 14, 1978 with the Lancaster County Court which was immediately denied. A similar Application was denied by this Court on June 26, 1978 by Judge Hoffman.

[ 266 Pa. Super. Page 282]

Appellant raises three issues on appeal, First, she contends that the testimony adduced at the informal hearings was insufficient so as to enable the review officer or the court to order her commitment. Second, she argues that the testimony of her physician at the informal hearing should have been barred as incompetent due to the physician-patient relationship. She also argues that the testimony of her husband at the informal hearing should have been barred due to the principle of inter-spousal immunity.

Taking the last issue first we recognize the principle of inter-spousal immunity, as set forth in 28 P.S. 316 and 28 P.S. 317, renders incompetent the testimony of one spouse against the other in either civil or criminal proceedings. More specifically 28 P.S. 316 prohibits a spouse from testifying as to "confidential communications" made by one spouse to the other, unless the privilege be waived upon the trial and 28 P.S. § 317 renders one spouse incompetent to testify "against the other" except in certain clearly defined situations such as divorce cases, spouse abuse actions, feme sole trader actions, and criminal actions brought by one spouse against the other for injury to the spouse or children of the spouse who instituted the charges. The public policy sought to be enhanced by the privilege is the preservation of marital harmony and the resultant benefits to society from that harmony. Hunter v. Hunter, 169 Pa. Super. 498, 83 A.2d 401 (1951). The issue therefore, is whether allowing a spouse to testify at a mental health hearing relative to the condition of his/her spouse constitutes a violation of the above principles. The answer is that it does not.

A spouse who testifies at a mental health hearing relative to his/her spouse's mental condition is not testifying "against" her. Assuming that he is acting in good faith the very purpose of his testimony is not to do something adverse to his wife but to help her obtain the help that she needs. While the spouse who needs the help may feel that the other spouse is "against" her/him this does not make it so. It is well known that the people suffering from the most severe mental problems are the last ones to admit that they have

[ 266 Pa. Super. Page 283]

    problems in that regard and that the first step to overcoming such a problem is to recognize it as a problem. Therefore, a husband or wife who seeks psychiatric help for his/her spouse is no more acting "against" the other spouse than is a parent who insists that his child see a doctor or dentist even though the child deplores such needed treatment. Neither the child nor the person with mental problems understands what is in his best interest.

Of course, if a spouse is acting in bad faith in seeking a commitment of the other spouse he would be subject to the various criminal and civil penalties or sanctions for which the law provides. However, because it might be possible for one spouse to act in bad faith in attempting to get the other spouse committed for mental treatment does not compel us to presume that such is the case and to hold that therefore the petitioning spouse is in an adversary position to the other spouse. To do so would be to elevate into law a presumption that runs counter to the great weight of human experience and takes an extremely pessimistic view of human nature.

As stated above, the basic policy behind the principle of inter-spousal immunity is to enhance marital harmony. In a mental health proceeding the objectives of that policy are preserved by permitting one spouse to be of help to the other. And who is in a better position to observe psychiatric behaviour on the part of a husband or wife than the other spouse? Many episodes of such behaviour will be witnessed only by the spouse and we find it difficult to believe that the Legislature meant to exclude testimony of a spouse which would assist the other spouse in obtaining the necessary psychiatric care when it adopted 28 P.S. 316 and 28 P.S. 317.

Insofar as "confidential communications" are concerned we hold that in adopting 28 P.S. 316 the Legislature did not intend to prohibit a spouse from testifying as to his wife's incoherent mutterings, ravings, or ramblings which do not constitute true communications but which are merely outward manifestations of a severely disturbed mind.

[ 266 Pa. Super. Page 284]

Appellant argues that in Commonwealth ex rel. Finken v. Roop, 234 Pa. Super. 155, 339 A.2d 764 (1975), this Court held that mental health hearings are adversary proceedings. Such is simply not the situation. In Roop, supra, a divided court held that the former Pennsylvania Mental Health Act was unconstitutional because it failed to provide a person with adequate due process guarantees in light of the fact that a person involuntarily committed pursuant to the Act would suffer a curtailment of individual rights. No such argument is advanced here but appellant would interpret that decision as tantamount to turning all involuntary mental health proceedings into adversary proceedings at which a spouse could not testify. As discussed above a spouse who testifies at a mental health proceeding relative to the mental condition of his wife is not automatically placed into a position "adverse" to her and in fact may very well be the strongest and most active protector of her best interests.

Likewise in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), does not compel a different result. In that case the Court held that juveniles were to be afforded certain due process guarantees at juvenile hearings even though the hearings were termed "civil" proceedings rather than criminal ones. In the instant case there is no question that the proceeding is a civil one even though an involuntary commitment will result in constraints upon a person's freedom. This is so because its purpose is to seek a cure for the person's mental problems and to protect that person and others from the committed person. Unlike a juvenile delinquency proceeding, a violation of the law had nothing to do with commitment under the Mental Health Act. Therefore, we hold that since a spouse who seeks mental treatment for a psychotic husband or wife is not in an adversary position to that spouse, that he or she is competent to testify about the spouse's activities relative to her/his mental condition at a mental health hearing.

Appellant's second contention is that the testimony of the psychiatrist who treated the appellant should have been excluded because appellant objected to such testimony

[ 266 Pa. Super. Page 285]

    on the grounds of the physician-patient privilege. Prior to the hearing, appellant's attorney had threatened appellant's psychiatrist with civil and criminal sanctions for violating the privilege if the psychiatrist testified at the informal hearing over appellant's objections to that testimony. The physician-patient privilege arises from the Act of June 7, 1907, P.L. 462, § 1, 28 P.S. § 328 which provides:

"No person authorized to practice physics or surgery shall be allowed, in any civil case, to disclose any information which he acquired in attending the patient in a professional capacity, and which was necessary to enable him to act in that capacity, which shall tend to blacken the character of the patient, without consent of said patient except in civil cases, brought by such patient, for damages on account of personal injuries".

This section does not render incompetent a physician's testimony regarding facts which he learned from his examination or observations of the patient but bars only confidential communications from the patient to the physician. Massich v. Keystone Coal and Coke Co., 137 Pa. Super. 541, 10 A.2d 98 (1940); Panko v. Consolidated Mutual Insurance Co., 423 F.2d 41 (3rd Cir. 1970). Nor does it bar the physician's testimony as to confidential communications between a client and patient in civil proceedings where such communications do not tend to "blacken the character of the patient". In re Marks, 121 Pa. Super. 181, 183 A. 432 (1936); Woods v. Accident Insurance Co., 347 F.2d 760 (3rd Cir. 1965). Therefore in order to fall within the scope of the physician-patient privilege the testimony of the doctor must: (1) involve information gathered from communication from patient to doctor and (2) the testimony must tend to blacken the patient's character. Both criteria must be met in order to give rise to the privilege. Appellant cites several cases wherein our courts have recognized that a certain stigma is often attached to one who has had to avail himself of psychiatric help and while we agree with the Lebanon County Court which stated in Kohr Estate, 71 D. & C.2d 48 (1976) that: "In this age of enlightenment regarding mental

[ 266 Pa. Super. Page 286]

    disorders, it is generally understood that incompetency due to organic and physical causes is something over which no mortal so afflicted has control. Thus, the court sees no stigma here." We need not further discuss the issue here as our Supreme Court has definitively determined that issue when it recently held that, "whatever the meaning of loathsome disease, psychiatric treatment does not evidence the existence of such a condition." In re "B", Appeal of Dr. Loren Roth, 482 Pa. 471, 394 A.2d 419 (1978). Since psychiatric treatment does not evidence the existence of a loathsome disease, evidence of such treatment could not blacken the reputation of one who has sought it for only evidence of such a disease would tend to blacken a person's reputation. Skruch v. Metropolitan Life Insurance Co., 284 Pa. 299, 131 A. 186 (1925).

Furthermore the Mental Health Procedures Act itself provides for the testimony of the physician who examined the person to be committed. The Act provides that during the informal hearing . . . "Information relevant to whether the person is severely mentally disabled and in need of treatment shall be reviewed, including the reasons that continued involuntary treatment is considered necessary. Such explanation shall be made by a physician who examined the person and shall be in terms understandable to a layman". 50 P.S. 7303(c) The Act goes on to provide the patient with the right to confront and question the physician, thus protecting the patient's due process right. Thus the Act requires the testimony of the treating physician at the informal hearing and since this Act was adopted subsequent to the Act establishing the physician-patient privilege we must presume that this section (Mental Health Act) takes preference over the statute establishing the physician-patient privilege. Statutory Construction Act of May 28, 1937, P.L. 1019, Art. 1, 46 P.S. 501 et seq. The object of all interpretations and constructions of statutes is to ascertain and effectuate the intention of the Legislature and every law is to be construed to effectuate that intent, if possible. 46 P.S. 551. When two statutes deal with the same things, a

[ 266 Pa. Super. Page 287]

    particular provision in one will control when the other statute is silent as to that matter. Borough of Millersville v. Lancaster Township, 2 Pa. Commw. 587, 279 A.2d 349 (1971), affirmed, case remanded on other grounds, 447 Pa. 310, 290 A.2d 102. See also, 46 P.S. 563 which provides that if a conflict in two statutes is irreconcilable, the special provisions shall prevail and shall be construed as an exception to the general provision. Because the Mental Health Procedures Act of 1976 was adopted subsequent to the Act establishing the physician-patient privilege, and because Section 303(c) of the said Act is a special provision requiring the testimony of the physician who treated the patient, which special provision controls the general physician-patient statute and constitutes an exception thereto we hold that the physician-patient privilege does not render incompetent the testimony of the patient's psychiatrist in a mental health proceeding. We also must recognize that to bar such testimony would defeat the obvious intent of the Legislature in requiring such testimony as a necessary element of a mental health proceeding and would bar the most reliable evidence of the patient's condition. The requirement of testimony of the treating physician is also the strongest guarantee that a spouse will not act in bad faith in attempting to commit a spouse for treatment who does not require it. Appellant would have us bar the testimony of the two people who are in the best position to detect and observe a person's mental disability, i. e. the person's spouse and the person's doctor. Such a result would be ludicrous and would defeat the obvious legislative purpose of the Act.

In addition, the testimony of the physician acts as a check or balance against that of the spouse. Because we have ruled that the specific provisions of the Mental Health Procedures Act take preference over the general ones of the Act establishing the physician-patient relationship and because psychiatric treatment does not evidence the existence of a loathsome disease which would tend to blacken a person's character, we hold that the physician-patient privilege does not apply here.

[ 266 Pa. Super. Page 288]

Appellant also cites 50 P.S. 7111, a section of the Mental Health Procedures Act of 1976, for the proposition that the physician-patient privilege renders the psychiatrist's testimony incompetent. That section provides that:

"All documents concerning persons in treatment shall be kept confidential and, without the person's written consent, may not be released or their contents disclosed to anyone except:

"(1) . . .

"(2) . . .

"(3) a court in the course of legal proceedings authorized by this act; and

"(4) . . ."

This section deals with documents. However, contrary to appellant's assertion this section supports the proposition that the physician's testimony is admissible during the informal hearing because the informal hearing is a "legal proceeding authorized by this act". 50 P.S. 7303 and subsection (3) of this section constitutes an exception to the confidentiality rule.

Finally, as discussed above, the Supreme Court of Pennsylvania has decided that the physician-patient privilege does not apply to psychiatric testimony. In re "B", Appeal of Dr. Loren Roth, supra. In that case a psychiatrist who had treated a woman whose juvenile son had escaped from a juvenile facility and stolen four automobiles refused to testify relative to the mother's mental condition or to release the hospital records relative thereto at a hearing held to determine whether the juvenile's best interests would be served by placing him with his mother. The psychiatrist was held in contempt and fined for refusing to testify after being ordered to do so by the court. He had refused to testify on the grounds of physician-patient privilege when the mother refused to consent to the release of this information. The court concluded that the physician-patient privilege did not prohibit the disclosure of the records. However, the court did conclude that the testimony concerning her medical records was barred by her right to privacy. However,

[ 266 Pa. Super. Page 289]

    the situation in Roth, supra, is unlike the one here in that in Roth there was no statute involved which explicitly required the psychiatric testimony.

The right to privacy, like every other right, is not absolute. In Roth, the basic issue with which the court was concerned was the best interests of the juvenile. The mother's hospital records were only one avenue which the court could explore in determining the child's best interests. Although relevant, the mother's psychiatric records were only one piece of evidence which would aid the court in its ultimate decision. Since other means of determining the child's best interests were available to the trial court our Supreme Court held that the mother's interests in her right to privacy outweighed the interests of the state in determining the juvenile's best interests. Therefore, the Court held that the trial court could not compel Dr. Roth to reveal the mother's hospital records pertaining to her mental condition over her objections because of her right to privacy. In our case, as in any "mental health case", the mental condition of the patient is the essence or gravamen of the proceeding. Determining that condition is the very purpose of the proceeding, and to hold that a psychiatrist is incompetent to testify at an involuntary commitment proceeding would be incongruous indeed. After all it is the psychiatrist who has the training and expertise to determine a person's mental condition. As stated above, it is the psychiatrist whose testimony stands between the patient and an unscrupulous spouse who attempts to commit a person who is not in need of treatment. Were we to hold that a patient could exclude his psychiatrist's testimony in an involuntary commitment proceeding on the grounds of his right to privacy we would effectively be "wiping such proceedings off the books" or else placing these important issues into the hands of laymen who are generally ill-equipped to render opinions or even observations relative to a person's mental state. Needless to say this would serve neither the interests of the patient nor society which has an interest in seeing to it that those of its members in need of treatment for mental disabilities obtain

[ 266 Pa. Super. Page 290]

    it. This we refuse to do and therefore hold that in this case the patient's right to privacy must give way to the interests of society in having that person treated. For these reasons we hold that the psychiatrist ...

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