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S.O. APPEAL S.O. R.T. APPEAL R.T. (05/10/85)


filed: May 10, 1985.


Appeal from the Orders in the Court of Common Pleas of Common Pleas of Philadelphia County, Civil Division, Nos. 5731 August 1983 & 2789 September 1983.


Bradley Bridge, Assistant Public Defender, Philadelphia, for appellants.

Martha Gale, Philadelphia, for appellee.

Cavanaugh, Beck and Tamilia, JJ.

Author: Tamilia

[ 342 Pa. Super. Page 219]

These appeals are companion cases presenting identical challenges to Philadelphia's implementation of procedures

[ 342 Pa. Super. Page 220]

    statutorily mandated for involuntary civil commitments under 50 Pa.C.S.A. § 7305 of the Mental Health Procedures Act (hereinafter, the Act). Both appellants allege that the procedural deficiencies of this system resulted in, inter alia, the denial of their right to due process. We agree.

The background of these cases may be summarized as follows. Both S.O. and R.T. were originally committed under section 302*fn1 of the Act in August and September,

[ 342 Pa. Super. Page 221]

    respectively, of 1983. Both appellants, after section 303*fn2 hearings, agreed to remain hospitalized. No formal testimony

[ 342 Pa. Super. Page 223]

    was taken at the hearings. In the case of S.O., no stipulation as to commitability was entered; R.T. conceded his dangerousness to self or others. No review was requested in either instance. At subsequent section 304*fn3

[ 342 Pa. Super. Page 226]

    hearings, testimony was taken as to the dangerous propensities of both appellants. S.O. was committed to a further stay not to exceed 30 days and R.T. to a further 60 days on in-patient status. Again, no review was requested of either commitment order.

The results of section 305*fn4 hearings, commitment of S.O. for a period not to exceed 90 days and of R.T. for another

[ 342 Pa. Super. Page 22760]

days, prompted petitions for review, which being denied led to the instant appeals. Of the issues before us, the first three, presenting instances of allegedly defective implementation of procedures essential to constitutional administration of the Act, are meritorious and require relief.

We note initially that although the commitment periods authorized by the section 305 hearings in question have long since expired,*fn5 a live controversy still exists since involuntary commitment orders involve important liberty interests over which it behooves us to maintain appellate vigilance. In re Remley, 324 Pa. Super. 163, 471 A.2d 514 (1984); In re Condry, 304 Pa. Super. 131, 450 A.2d 136 (1982); Commonwealth ex rel. Bielat v. Bielat, 257 Pa. Super. 446, 390 A.2d 1321 (1978).

It is first alleged that appellants' right to due process was abridged in that the terms of the Act were violated by the court's pro forma and belated review of the section 305 commitment hearings before the Mental Health Review Officer (hereinafter, MHRO). This conclusion (which encompasses two issues in appellants' briefs) is premised on the applicability to such proceedings of section 109(b) of the Act.

50 Pa.S.A. § 7109 reads as follows:

§ 7109. Mental health review officer

(a) Legal proceedings concerning extended involuntary emergency treatment under section 303(c), court-ordered involuntary treatment under sections 304 and 305 or transfer hearings under section 306, may be conducted by a judge of the court of common pleas or by a mental health review officer authorized by the court to conduct the proceedings. Mental health review officers shall be

[ 342 Pa. Super. Page 228]

    members of the bar of the Supreme Court of Pennsylvania, without restriction as to the county of their residence and where possible should be familiar with the field of mental health. Law-trained municipal court judges may be appointed mental health review officers.

(b) In all cases in which the hearing is conducted by a mental health review officer, a person made subject to treatment shall have the right to petition the court of common pleas for review of the certification. A hearing shall be held within 72 hours after the petition is filed unless a continuance is requested by the person's counsel. The hearing shall include a review of the certification and such evidence as the court may receive or require. If the court determines that further involuntary treatment is necessary and that the procedures prescribed by this act have been followed, it shall deny the petition. Otherwise, the person shall be discharged.

(c) Notwithstanding any other provision of this Act, no judge or mental health review officer shall specify to the treatment team the adoption of any treatment technique, modality, or drug therapy. (emphasis added)

The review hearings on S.O.'s and R.T.'s petitions were held 52 and 36 days respectively after the petitions were lodged. No testimony was presented, no argument or additional evidence was allowed and there was no review of actual testimony below.

Appellee would ignore section 109 altogether, arguing that because the review procedure is reiterated in section 303(g), its exclusion from section 305 signifies its inapplicability to that provision. Operating on the expressio unius est exclusio alterius theory, the court below found that because the language of section 109 is not reiterated in (inter alia) section 305, its conditions were, therefore, not legislatively intended to involve section 305. A review of the entire act shows clearly the legislative plan in which Article I, General Provisions, relates clearly to the subsequent articles, each of which addresses itself to logically

[ 342 Pa. Super. Page 229]

    delineated classes of procedures; Article II, Voluntary examination and treatment, Article III, Involuntary examination and treatment, Article IV, Determination affecting those charged with crime as under sentence.

However, in Commonwealth v. McMullins, 315 Pa. Super. 531, 462 A.2d 718 (1983), we held in reference to the Act, albeit another section, that "a statute must be construed if possible to give effect to all of its provisions," Id., 315 Pa. Superior Ct. at 539, 462 A.2d 722, our authority being the Statutory Construction Act, 1 Pa.C.S.A. § 1921(a). To argue as appellee does that section 109 has definitional significance only is to render it surplusage. But section 109 refers directly to petitions from section 7305 commitment hearings over which an MHRO has presided. This Court, in In re Chambers, 282 Pa. Super. 327, 422 A.2d 1140 (1980), has intimated that section 109 is apposite in construing section 7304, finding that an MHRO may not issue a final order appealable to this Court and, so that a final order might issue, recourse must be had to the review procedures outlined in section 109. It therefore follows logically that what is true, even by indirection, for section 304 must similarly be true for section 305. Thus, we do to some extent adopt the trial court's adherence to consistency, holding, however, that all the provisions of the statute enjoy equivalent status. Further, once it is determined, as we now do, that section 109 applies to all of the provisions referenced by subsection (a), strict adherence thereto is compelled by the legislative policy reflected in the Act. Commonwealth v. Hubert, 494 Pa. 148, 430 A.2d 1160 (1981); In re: S.C., 280 Pa. Super. 539, 421 A.2d 853 (1980); Commonwealth v. Blaker, 293 Pa. Super. 391, 446 A.2d 976 (1981).

Adherence to procedural due process at the initial stage of the commitment process does not satisfy the requirements of continued safeguarding of a person's liberty interests as he undergoes increasingly long periods of involuntary institutionalization. To say that because due process is safeguarded in one instance, it may be ignored in

[ 342 Pa. Super. Page 230]

    another, manifestly more serious situation, requires us to deny the carefully designed statute which intends to provide treatment, with the least restriction on liberty and freedom consistent with protection of the patient and society. Appellant's citation to cases holding that procedural protections must expand as the deprivation of individual liberty increases is found to be unjustified by appellee on the grounds that the cases referred to are factually distinguishable. In re Ann S., 279 Pa. Super. 618, 421 A.2d 370 (1980); Commonwealth v. C.B., 307 Pa. Super. 176, 452 A.2d 1372 (1982). We disagree. The principal remains the same, mutatis mutandis.

Appellee argues somewhat quixotically that even if section 109 requires reviews of petitions under section 305 to be heard within 72 hours (unless a continuance is required by the person's counsel),*fn6 decisions could not be rendered within that period. Presumably this is offered in mitigation of the delays between petitions, hearings and findings in appellants' cases (50 and 36 days). This does not exculpate appellee since section 305 refers to the procedures of section 304(a)(b) for continued involuntary treatment -- and section 304(e)(7) requires that a decision be entered within 48 hours of the close of the evidence. The 72 hours required by section 109 refers to the time to conduct the hearing and not the time for decision. The statute provides for sufficient time to adequately present evidence, and a reasonable time to pass on such evidence. We can only find such digressions irrelevant as justification and unconscionable as determinative of the need for continued treatment. Seventy-two hours is an adequate evaluative time frame for an initial deprivation of liberty and is similarly adequate for an ongoing detention, during which treatment data is continually recorded. A legally sufficient hearing can be conducted within that period, thus limiting restrictions on liberty to the minimum required under the circumstances.

[ 342 Pa. Super. Page 231]

Also under the denial of the procedural due process rubric is appellants' contention that the court's denial of access to transcripts of the commitment hearings prevented thorough preparation for review. Although tape recordings were made of the proceedings, defense counsel's requests for these or a transcripted version were denied. The court based its refusal on the lack of any expressed statutory right to transcription of proceedings, although noting that section 304 does require that some specific record be made. We find that patient access to whatever record has been made, and in the form it exists, is required at a minimum to comport with due process. We note that this was provided without further comment by the courts in Blaker and Condry, supra, and we see no reason other than a somewhat arbitrary local custom to deny the information. This would also be inconsistent with Department of Welfare regulations, 55 Pa.Code § 5100.33, giving a patient access to records and control over release of records, all of which ascribes to a policy of "openness".

Appellants' last procedural claim is that the certification mandated by section 303(d)(1-6) was never prepared by the MHRO and that, in consequence, reversal of the commitment order is warranted along with expungement of the record. In re Condry, supra. Appellee's response is that because this issue has been raised for the first time before this Court, it is waived. We find that appellee's assertion is correct but that in any event the merits of the issue are negligible. Form MH784 is required to document certification by Department of Public Welfare regulations governing commitment procedures. See 55 Pa.Code 7100.303(e)(1), Pa. Bulletin, Vol. 9, No. 41, Oct. 13, 1979. Such a form appears in the record containing the information required by the Act, albeit in an abbreviated manner. We find this adequate to fulfill the intent of the statute and the demands of the pertinent regulations.

Appellants' penultimate claim is essentially a challenge to the sufficiency of the evidence. It is alleged that the results of the 305 hearing were in error because the

[ 342 Pa. Super. Page 232]

    evidence introduced at that hearing failed to establish that S.O. and R.T. posed a clear and present danger to themselves or others. A finding of clear and present danger must have been based on an overt act occurring within 30 days prior to the initial commitment established in these cases at the 302 hearings, or if there is no overt act, then the patient's inability to satisfy his own need for nourishment, personal or medical care, shelter, self-protection and safety must have been demonstrated. See Commonwealth ex rel. Gibson v. DiGiacinto, 497 Pa. 66, 439 A.2d 105 (1981).

For further periods of treatment, section 305(a) requires findings specified by section 304(a)(1-2), (b)(1-5), and further, that need for such treatment be demonstrated "by conduct during the person's most recent period of court ordered treatment." Section 304(a)(1) does speak of clear and present danger in original commitment situations; section 304(a)(2) refers to persons already involuntarily committed. There is, under these provisions, no necessity to demonstrate a recrudescence of dangerous behavior, only that such behavior as is required for an original commitment in fact occurred. Section 304(b) provides for petition, notice, evaluation, counsel and expert testimony to be presented at a hearing within five days of the filing of the petition. The record is clear that both S.O. and R.T., at the inception of their commitments were in need of treatment. Appellants' characterization of their behavior and existences as merely evidencing a penchant for the unorthodox or unconventional is somewhat naive in view of the activity leading to the original commitments of each of them. R.T. admitted to auditory and visual hallucinations which included a machine in his brain constantly telling him to kill his mother and others. On leave, he made threats to kill his mother and the police and had to be returned to the hospital. He has had seven previous mental health commitments. He is diagnosed as an Undifferentiated Schizophrenic in Acute Exacerbation. This behavior continued throughout the procedures sub judice.

[ 342 Pa. Super. Page 233]

S.O.'s presenting problem was her bizarre behavior in Center City, Philadelphia, darting in and out of traffic, walking up the middle of the street in traffic, resisting any attempt by police and others to help her. She lives in an abandoned house without utilities and has lost several toes to frostbite. She is deemed incapable of providing basic care for herself and is diagnosed as Chronic Schizophrenic, undifferentiated type, who presents a clear and present danger to herself.

Finally, appellants argue that consistent with the policy of the Act they should have been released to less restrictive treatment environments prior to full time inpatient care under section 305. While the statement is true in theory, its application is, as a practical matter, wholly dependent on prior determinations of dangerousness with subsequent conduct that establishes continuity of the original condition. The requirements of this section are met upon the presentment of a 305 petition at the request of the institution administrator for continued involuntary treatment and request for continued inpatient treatment until outpatient care can be obtained. Where such (community) treatment is clearly inappropriate, policy considerations are of little moment.

The threshold inquiry in civil commitments is whether mental illness is present. For both appellants, the answer is clearly affirmative. However, it must be remembered that the mental condition of the person in no way diminishes his right to due process. We must reiterate the principle that the Act was intended "to create a treatment scheme under which a patient's procedural protections expand progressively as deprivation of his liberty gradually increases." In re C.B., supra, 307 Pa. Superior Ct. at 181, 452 A.2d at 1374. Without ascribing to the court or to appellee ill will or in fact any negative intent, it would appear that the rights of the appellants herein have been treated as a de minimis matter. As this Court held in Blaker, supra, "It is not enough to find, . . . that appellant 'was truly in need of the services offered by [the] mental

[ 342 Pa. Super. Page 234]

    health system.'" Id., 293 Pa. Superior Ct. at 398, 446 A.2d at 980. Where procedural requirements are not fulfilled the commitment is unlawful.

The real crux of the instant cases is whether or not the statutory mandate shall be applied to compel the procedural requirements in committing appellants, or whether, in fact, the pragmatic view of the need for treatment shall supersede the question of compliance with due process. Again, we note decisions holding that where mandated procedures are not followed, involuntary commitment is improper, In re C.B., supra, and the appropriate remedy is to vacate the commitment order and expunge the record. In re Condry, supra. We find no reason to diverge from this course now.

Appellee over and over seeks to place the imprimatur of legitimacy upon the procedure developed in Philadelphia County by assuring us that the commitments to which appellants were subjected conform to established custom and practice. We are not comforted. Especially in dealing with the mentally ill, custom and practice have in the past allowed society to look benignly at treatment which can only be described as barbarous. It is no less true now that habit necessarily provides no reliable indicium of anything more than the expedient unless it conforms precisely to the requirements of legislation designed to safeguard both the rights and the lives of those so affected. We cannot, in exercising our paternalistic impulses, forget that due process requirements must be met to assure compliance with legal standards related to the restriction of liberty. We do not mean to denigrate good intentions, but only to make clear that more is required than a sincere desire to help. Assistance must be rendered properly, or in a larger sense, this carefully balanced system will fail.

On the other hand, the same restraint of liberty which prevents us from shouting "fire" in a crowded theater, prohibits as well the exercise of "liberty" by those to whom it is in fact anathema, spelling certain, although

[ 342 Pa. Super. Page 235]

    possibly slow, destruction. It is this consideration which must affect most strongly our determination of appropriate relief. We, therefore, make the rules established in this case prospective only requiring strict adherence to our reading of the statute in all cases which come before the court as of thirty days from the filing of this Opinion. See In re S.C., supra. In short, we disagree, not with appellee's conclusions, but with the methodology employed to reach them.

Order affirmed.

Jurisdiction relinquished.

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