Com. v. E.D. ( 2018 )

J-S49020-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
E.D.
Appellant No. 466 MDA 2018
Appeal from the Judgment of Sentence imposed March 6, 2018
In the Court of Common Pleas of Huntingdon County
Civil Division at No: CP-31-MD-0000044-2018
BEFORE: SHOGAN, J., STABILE, J., and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 24, 2018
Appellant, E.D., appeals from an order directing her to undergo
continuing involuntary inpatient mental health treatment under 50 P.S. § 7305
(“section 305”) of the Mental Health Procedures Act (“MHPA”). We affirm.
On November 10, 2017, Appellant, a physician, voluntarily entered the
behavioral health unit of J.C. Blair Memorial Hospital (“Hospital”) for inpatient
treatment due to suicidal ideations. She was diagnosed with bipolar disorder
with mixed features and anxiety. On November 17, 2017, the court ordered
Appellant to undergo extended involuntary treatment under 50 P.S. § 7303
(“section 303”). On December 7, 2017, the court ordered continued inpatient
treatment for ninety days pursuant to 50 P.S. § 7304 (“section 304”). On
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S49020-18
March 1, 2018, the Hospital filed a petition for continued involuntary inpatient
treatment under section 305.
During a section 305 hearing on March 6, 2018, Appellant’s treating
psychiatrist, Dr. Qamar, testified that Appellant was depressed and suicidal.
He stated that she had been on intensive treatment, including one-on-one and
team counseling. On February 18, 2018, just one night after one-on-one
counseling was discontinued, a Hospital nurse discovered that Appellant had
made a noose with which to hang herself. Appellant told the nurse she
planned to kill herself by hanging herself at the door that goes to a therapist’s
office. Although she had signed safety plans in the past, she did not cooperate
with required treatment. She had been a physician, but at the time of her
treatment, her license in Maryland was revoked and her license in Delaware
was suspended. She had nowhere to live and no one to help her should she
have been discharged.
Because of the suicide attempt and history of noncompliance with
treatment, Dr. Qamar believed Appellant to be a danger to herself and
recommended placement in a state hospital until she was stable and safe
enough to be discharged. Dr. Qamar testified that Appellant failed to comply
with prior treatment plans. He was alarmed that he had never had a patient
who had posed such a danger to herself as Appellant, stating to her attorney
during the hearing: “Do you know how much we are working to keep her safe?
You don’t . . . We have one-on-one with her, along with team. This is first
time I have seen in my ten years’ training that we stop one-on-one for one
-2-
J-S49020-18
night and she forms a noose under her pillow.” N.T., 3/6/18, at 7. Dr. Qamar
added that Appellant “still wants to kill herself.” Id. at 2.
Appellant disagreed with the proposed plan to send her to the state
hospital. She testified that her present course of treatment at the Hospital
was best for her. She believed that the medication and counseling she had
been receiving at the Hospital was helping her. She asked the trial court to
allow her to commit herself voluntarily to inpatient treatment or pursue
outpatient counseling.
The court denied Appellant’s proposed course of future treatment,
granted the section 305 petition, and ordered Appellant to undergo inpatient
treatment for a period not to exceed 180 days at a state hospital. The order
stated that Appellant “is severely mentally disabled within [the] meaning of
the [MHPA] and presents clear and present danger to herself.”
Appellant filed a timely appeal, and both Appellant and the court
complied with Pa.R.A.P. 1925. The court wrote in its opinion: “Based on the
evidence presented at hearing, [Appellant] is not only unable to care for her
own safety, but poses a great risk to her life. As such, continued inpatient
treatment is necessary.” Trial Ct. Op., 4/30/18, at 2.
Appellant raises one question in this appeal:
Did the Commonwealth prove by clear and convincing evidence
that the Appellant required continuing involuntary mental health
treatment at a state hospital, despite the fact that the
Commonwealth’s sole witness admitted that the Appellant was
willing to contract for safety, and the Appellant identified less
restrictive means of treating her condition?
-3-
J-S49020-18
Appellant’s Brief at 3. We conclude that the Commonwealth proved by clear
and convincing evidence that Appellant required continuing involuntary mental
health treatment at a state hospital.
Our recent decision in In Re S.M., 176 A.3d 927 (Pa. Super. 2017),
provides an excellent overview of the MHPA that defines key terms within this
act, details each stage of the commitment process, and demonstrates section
305’s relationship to other provisions in the MHPA. We reprint S.M.’s overview
in full below:
The MHPA provides for involuntary emergency examination and
treatment of persons who are “severally mentally disabled and in
need of immediate treatment.” 50 P.S. § 7301(a). It then
authorizes increasingly long periods of commitment for such
persons, balanced by increasing due process protections in
recognition of the significant deprivations of liberty at stake. See
In re A.J.N., 144 A.3d 130, 137 (Pa. Super. 2016) (highlighting
MHPA’s purpose as “an enlightened legislative endeavor to strike
a balance between the state’s valid interest in imposing and
providing mental health treatment and the individual patient’s
rights”) (quoting In re Hutchinson, [] 454 A.2d 1008, 1010
([Pa.] 1982)); In re Ryan, 784 A.2d 803, 807 (Pa. Super. 2001)
(“The legislative policy reflected in the [MHPA] is to require that
strict conditions be satisfied before a court order for commitment
shall be issued. Such a policy is in accord with the recognition
that commitment entails a massive deprivation of liberty.”)
(quoting Commonwealth v. Hubert, [] 430 A.2d 1160, 1162
([Pa.] 1981)). Accordingly, “[i]n applying the [MHPA,] we must
take a balanced approach and remain mindful of the patient’s due
process and liberty interests, while at the same time permitting
the mental health system to provide proper treatment to those
involuntarily committed to its care.” In re S.L.W., 698 A.2d 90,
94 (Pa. Super. 1997).
Under section 301(a):
-4-
J-S49020-18
A person is severely mentally disabled when, as a result of
mental illness, his capacity to exercise self-control, judgment and
discretion in the conduct of his affairs and social relations or to
care for his own personal needs is so lessened that he poses a
clear and present danger of harm to others or to himself.
50 P.S. § 7301(a). Section 301(b)(2) defines “clear and present
danger” to oneself as follows:
Clear and present danger to himself shall be shown by establishing
that within the past 30 days:
(i) the person has acted in such manner as to evidence that he
would be unable, without care, supervision and the continued
assistance of others, to satisfy his need for nourishment, personal
or medical care, shelter, or self-protection and safety, and that
there is a reasonable probability that death, serious bodily injury
or serious physical debilitation would ensue within 30 days unless
adequate treatment were afforded under this act; or
(ii) the person has attempted suicide and that there is the
reasonable probability of suicide unless adequate treatment is
afforded under this act. For the purposes of this subsection, a clear
and present danger may be demonstrated by the proof that the
person has made threats to commit suicide and has committed
acts which are in furtherance of the threat to commit suicide; or
(iii) the person has substantially mutilated himself or attempted
to mutilate himself substantially and that there is the reasonable
probability of mutilation unless adequate treatment is afforded
under this act. For the purposes of this subsection, a clear and
present danger shall be established by proof that the person has
made threats to commit mutilation and has committed acts which
are in furtherance of the threat to commit mutilation.
Id. § 7301(b)(2).
Section 302 provides for emergency examination of persons,
which
may be undertaken at a treatment facility upon the certification
of a physician stating the need for such examination; or upon a
warrant issued by the county administrator authorizing such
examination; or without a warrant upon application by a physician
-5-
J-S49020-18
or other authorized person who has personally observed conduct
showing the need for such examination.
Id. § 7302(a). Under section 302(b), a physician must examine
the person “within two hours of arrival . . . to determine if the
person is severely mentally disabled within the meaning of section
301 and in need of immediate treatment.” Id. § 7302(b) (internal
footnote omitted). If the physician so finds, then “treatment shall
be begun immediately.” Id. If not, then “the person shall be
discharged and returned to such place as he may reasonably
direct.” Id. Section 302 allows a person to be committed up to
120 hours. Id. § 7302(d).
When a treatment “facility determines that the need for
emergency treatment is likely to extend beyond 120 hours,”
section 303 provides that the facility may apply to have that
involuntary commitment extended up to 20 days. Id. § 7303(a),
(h). The facility files an application for such commitment with the
court of common pleas, which then appoints an attorney for the
person unless it appears “that the person can afford, and desires
to have, private representation.” Id. § 7303(b). “Within 24 hours
after the application is filed, an informal hearing shall be
conducted by a judge or . . . [MHRO.]” Id. The court or MHRO
must keep the record generated by these proceedings for at least
one year. Id. § 7303(c)(2). Where the judge or MHRO
“determines that extended involuntary emergency treatment is
necessary,” a “certification shall be filed with the director of the
facility and a copy served on the person, such other parties as the
person requested to be notified pursuant to section 302(c), and
on counsel.” Id. § 7303(d)(1), (e).
Should an MHRO certify that an extended section 303 commitment
is appropriate, the committed person may “petition to the court of
common pleas for review of the certification.” Id. § 7303(g). The
court must hold a hearing “within 72 hours after the petition is
filed unless a continuance is requested by the person’s counsel.”
Id. “The hearing shall include a review of the certification and
such evidence as the court may receive or require.” Id. “If the
court determines that further involuntary treatment is necessary
and that the procedures prescribed by the [MHPA] have been
followed, it shall deny the petition. Otherwise, the person shall be
discharged.” Id.
-6-
J-S49020-18
Section 304 of the MHPA allows for court-ordered involuntary
treatment up to 90 days. Id. § 7304(g). Petitions for involuntary
commitment under section 304 may be made for persons already
committed under section 302 or 303, see id. § 7304(b), as well
as for persons not currently committed, see id. § 7304(c).
Subsection (a) describes who may be committed under section
304:
(1) A person who is severely mentally disabled and in need of
treatment, as defined in section 301(a), may be made subject to
court-ordered involuntary treatment upon a determination of clear
and present danger under section 301(b)(1) (serious bodily harm
to others), or section 301(b)(2)(i) (inability to care for himself,
creating a danger of death or serious harm to himself), or
301(b)(2)(ii) (attempted suicide), or 301(b)(2)(iii) (self-
mutilation).
(2) Where a petition is filed for a person already subject to
involuntary treatment, it shall be sufficient to represent, and upon
hearing to reestablish, that the conduct originally required by
section 301 in fact occurred, and that his condition continues to
evidence a clear and present danger to himself or others. In such
event, it shall not be necessary to show the reoccurrence of
dangerous conduct, either harmful or debilitating, within the past
30 days.
Id. § 7304(a)(1),(2) (internal footnote omitted). For persons
already subject to treatment under sections 303, 304, or 305, the
county administrator or the director of the facility may petition for
court-ordered involuntary treatment. Id. § 7304(b)(1). For
persons not already in involuntary treatment, “[a]ny responsible
party may file a petition in the court of common pleas requesting
court-ordered involuntary treatment for any person . . . for whom
application could be made under [section 304](a).” Id. §
7304(c)(1).
As with section 303, the subject of the petition is entitled to
assistance of counsel and a hearing on the petition. Id. §
7304(b), (c). If the person is currently committed, the hearing
shall be held within five days. Id. § 7304(b)(4). If the person is
not currently committed, then the person shall be served a copy
of the petition “at least three days before the hearing.” Id. §
7304(c)(4). Persons subject to such a hearing have the right “to
the assistance of an expert in mental health,” the right to silence,
-7-
J-S49020-18
“the right to confront and cross-examine all witnesses and to
present evidence in his own behalf,” and the right to a private
hearing upon request. Id. § 7304(e)(1)-(4). “A stenographic or
other sufficient record [of the hearing] shall be made[.]” Id. §
7304(e)(5). The court must impound the record, which may be
“obtained or examined only upon the request of the person or his
counsel or by order of the court on good cause shown.” Id. As
with section 303, “[t]he hearing shall be conducted by a judge or
by a [MHRO] and may be held at a location other than a
courthouse when doing so appears to be in the best interest of the
person.” Id. § 7304(e)(6). If the judge or MHRO finds by
clear and convincing evidence that the person is severely
mentally disabled and in need of treatment and subject to
subsection (a), an order shall be entered directing treatment of
the person in an approved facility as an inpatient or an outpatient,
or a combination of such treatment as the director of the facility
shall from time to time determine.
Id. § 7304(f). Inpatient treatment may be ordered “only after full
consideration has been given to less restrictive alternatives.” Id.
As with section 303, if the determination is made by an MHRO,
the person has a right to appeal the certification to the court of
common pleas. Id. § 7109(b). This review process is identical to
the section 303 certification review process. Id.
Under section 305, the trial court may extend a period of
involuntary treatment under section 304(g) or 305 for up
to 180 days. Id. § 7305(a). To commit a person under
section 305, the trial court must make the requisite
findings in section 304(a) and (b), and must further find “a
need for continuing involuntary treatment as shown by
conduct during the person’s most recent period of court-
ordered treatment.” Id. Persons found dangerous to
themselves under section 301(b)(2) are “subject to an
additional period of involuntary full-time inpatient
treatment only if [they] ha[ve] first been released to a less
restrictive alternative.” Id. However, that requirement
does not apply where the judge or MHRO determines “that
such release would not be in the person’s best interest.”
Id. As with sections 303 and 304, if the determination is
made by MHRO certification, the person may seek review
in the court of common pleas. Id. § 7109.
-8-
J-S49020-18
Id. at 930-34 (emphasis added).
“In reviewing a trial court order for involuntary commitment, we must
determine whether there is evidence in the record to justify the court’s
findings.” Id. at 935. “Although we must accept the trial court’s findings of
fact that have support in the record, we are not bound by its legal conclusions
from those facts.” Id.
The issue in this case is whether there was sufficient evidence to warrant
Appellant’s continued involuntary treatment under section 305. To satisfy
section 305, there must be “clear and convincing evidence of the need for
continuing involuntary treatment as shown by conduct during the person’s
most recent period of court-ordered treatment.” Id. “Our Supreme Court has
defined clear and convincing evidence as ‘testimony that is so clear, direct,
weighty, and convincing as to enable the trier of fact to come to a clear
conviction, without hesitation, of the truth of the precise facts in issue.’” In
re S.T.S., Jr., 76 A.3d 24, 38 (Pa. Super. 2013) (quoting In re R.I.S., 36
A.3d 567, 572 (Pa. 2011)). “[T]he clear and convincing evidence test ‘has
been described as an ‘intermediate’ test, which is more exacting than a
preponderance of the evidence test, but less exacting than proof beyond a
reasonable doubt.’” Id. (quoting Commonwealth v. Meals, 912 A.2d 213,
219 (Pa. 2006).
Our analysis in Commonwealth v. Romett, 538 A.2d 1339 (Pa. Super.
1988), guides our review of section 305. In Romett, we reviewed a section
-9-
J-S49020-18
305 recommitment that was originally based on the appellant’s violent
behavior towards family members. Her commitment was extended three
times before the section 305 hearing. At that hearing, she “violently slapped
a nurse across the face.” Id. at 1341. Her treating psychiatrist testified that
“[she] had also recently shown assaultive behavior toward him.” Id. The
psychiatrist testified that she had a mental illness “manifested in delusions,
poor impulse control, and beliefs that others are ‘out to get her.’” Id. The
psychiatrist opined that “cessation of [her] treatment would reasonably result
in future assaultive behavior . . . [and she] posed a danger to others rather
than to herself.” Id. Based on this evidence, the trial court ordered her
involuntarily committed for 30 days of inpatient treatment, followed by 150
days of outpatient treatment. We affirmed, holding:
[F]or a person to be recommitted for an additional period of
treatment, it need not be established that the person has inflicted
or attempted to inflict serious bodily harm upon another within
the past thirty days, as required for the original commitment. The
[MHPA] specifically states that on recommitment it is not
necessary to show that the patient committed an overt act within
30 days of the hearing. It is necessary however for the court to
find that within the patient’s most recent period of
institutionalization, the patient’s conduct demonstrated the need
for continuing involuntary treatment, . . . i.e. his condition
continues to evidence a clear and present danger to himself or
others ....
Id. at 1341–42. We concluded that clear and convincing evidence supported
the trial court’s finding that the appellant posed a clear and present danger to
others, since she exhibited violent conduct which resulted in her initial
commitment, continued to do so during the commitment period, and had a
- 10 -
J-S49020-18
“diagnosis as a paranoid schizophrenic with delusions that others are
threatening her, together with [a] prognosis that her assaultive behavior
would continue without further treatment.” Id.
Whereas the record in Romett showed that the appellant continued to
pose a clear and present danger to others, the record herein demonstrates
that Appellant continued to pose a clear and present danger to herself.
Appellant was admitted to the Hospital on November 10, 2017 due to suicidal
ideations. The court ordered further involuntary treatment on November 17,
2017 and an additional ninety days of involuntary commitment during a
section 304 hearing on December 17, 2017. On March 6, 2018, the court
convened a section 305 hearing to determine whether further involuntary
commitment was necessary. Appellant’s treating psychiatrist testified that
Appellant constructed a noose on February 18, 2018, during her most recent
period of hospitalization and just one day after one-on-one counseling ended.
When a nurse discovered the noose, Appellant described the manner in which
she intended to hang herself. Appellant’s psychiatrist testified that in his ten
years of experience, he had never had a patient attempt suicide so quickly
after the discontinuation of treatment. He added that Appellant was non-
compliant with all past safety plans, and that if she were discharged, she had
nowhere to go and nobody to help her.
Thus, we agree with the trial court that there was clear and convincing
evidence that (1) Appellant committed an overt act during her most recent
- 11 -
J-S49020-18
period of hospitalization, and (2) she continues to pose a clear and present
danger to herself. This evidence was sufficient to uphold the order
involuntarily committing Appellant to 180 days of inpatient treatment at a
state hospital. We conclude that Appellant’s challenge to the sufficiency of
the evidence is devoid of merit.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/24/2018
- 12 -