Matter of Wahlquist ( 1978 )

HALL, Justice

(concurring and dissenting):

I agree that by virtue of passage of time alone this case may be remanded for further re-examination¹ but I do not agree that such re-examination of the prior order of hospitalization requires the initiation of a totally new proceeding and the resultant appointment of new designated examiners.

The re-examination statute² does require “proceedings in accordance with such section 64-7-36”³ but the logical and reasonable interpretation thereof dictates that compliance therewith does not require procedural repetition that serves no useful or necessary purpose.

The hospitalization statute ⁴ basically provides for notice, hearing, right to be present, testify and present witnesses, representation by counsel, and the taking of relevant and material evidence for the purpose of ascertaining mental illness and the need, if any, for hospitalization.

The obvious purpose of the re-examination is two-fold. It determines present need for continued hospitalization and affords necessary protection against unlawful deprivation of liberty. Those purposes are adequately served by a proceeding which complies with those basic requirements of the hospitalization statute hereinabove set forth and it in no way necessitates or requires a new beginning, nor does it require the appointment of new examiners.

Generally, the mental health facility or the physician in charge of the patient’s care, having treated the patient for a period of six months, would be more knowledgeable as to the patient’s condition than would a set of new examiners. However, I would leave it to the discretion of the court on a case by case basis as to whether or not further or additional medical examination would be necessary for it to reach the ultimate determination as to the need for continued hospitalization.

ELLETT, C. J., concurs in the views expressed in the concurring and dissenting opinion of HALL, J.

1 . Provided for by U.C.A., 1953, 64-7-45.

2 . Ibid.

3 . Referring to U.C.A., 1953, 64-7-36 (the initial hospitalization statute).

4 . Ibid.