In re G.J.P.

JUSTICE GRAY,

dissenting.

I respectfully dissent from the Court’s opinion on the issue of whether G.P. was illegally detained under § 53-21-129, MCA. When controlling statutes are applied, it is clear that the Court’s conclusion that G.P. was not illegally detained is incorrect.

G.P. originally was detained pursuant to § 53-21-129, MCA, which provides for the extraordinary procedure of civilly detaining a Montana citizen prior to any judicial involvement. The statute provides in pertinent part:

Emergency situation — petition — detention.
(1) When an emergency situation exists, a peace officer may take any person who appears to be seriously mentally ill and as a result of serious mental illness to be a danger to others or to himself into custody only for sufficient time to contact a professional person for emergency evaluation. If possible, a professional person should be called prior to taking the person into custody.
(2) If the professional person agrees that the person detained appears to be seriously mentally ill and that an emergency situation exists, then the person may be detained and treated until the next regular business day.

*381Section 53-21-129, MCA. It is clear that the operative phrases are “seriously mentally ill” and “emergency situation;” it is equally clear that both elements must be met before a person may be detained pursuant to § 53-21-129, MCA.

“Seriously mentally ill” is statutorily defined to mean: suffering from a mental disorder which has resulted in self-inflicted injury or injury to others or the imminent threat of injury or which has deprived the person afflicted of the ability to protect the person’s life or health. For this purpose, injury means physical injury. A person may not be involuntarily committed to a mental health facility or detained for evaluation and treatment because the person is ... suffering from a mental disorder unless the condition causes the person to be seriously mentally ill within the meaning of this part.

Section 53-21-102(15), MCA (emphasis added). “Emergency situation” is statutorily defined to mean “a situation in which any person is in imminent danger of death or serious bodily harm from the activity of a person who appears to be seriously mentally ill.” Section 53-21-102(4), MCA.

Nothing of record relied on by the Court establishes that the necessary circumstances existed here to support the emergency detention of G.P. As a result, I conclude that the detention was not legal. I begin with the assumption, seemingly established by the record, that G.P. suffers from a mental disorder. Section 53-21-102(15), MCA, makes it clear that suffering from such a disorder is merely the threshold inquiry in determining whether a person is seriously mentally ill; it is not sufficient to detain a person under § 53-21-129, MCA, or to involuntarily commit that person pursuant to §§ 53-21-121 through 53-21-126, MCA.

The first question before the Court, then, must be whether G.P. met any of the disjunctive criteria set forth in the statutory definition of “seriously mentally ill.” In this regard, only the testimony of Dr. David Carlson is relevant, because he is the only “professional person” involved in this matter and is the person whose contact with the Billings police resulted in G.P.’s emergency detention. Phillip Oliver’s written support for the involuntary commitment of G.P, set out at length in the Court’s opinion, is totally irrelevant to this issue; Mr. Oliver, an attorney and friend of G.P., is indisputably not a “professional person” for purposes of the emergency detention statute.

The Court cites the following as the totality of Dr. Carlson’s testimony about G.P.’s pre-detention situation:

*3821. Dr. Carlson had treated G.P. following an earlier hospitalization three months earlier.
2. G.P. had a “history of depression with suicide ideation and behavior.”
3. G.P. suffers from manic depressiveness.
4. In the days before the emergency detention, Dr. Carlson received phone calls from persons concerned about G.P.’s mental health.
5. In Dr. Carlson’s opinion, G.P. was in a manic high in the days immediately preceding the detention, and would become severely depressed when he “crashed” from that high.
6. It was Dr. Carlson’s opinion that G.P. had “no insight, very agitated, suicide rife.”

While this testimony may well establish that G.P. has a history of, and suffers from, a mental disorder, it does not establish that G.P. was seriously mentally ill at the time of the detention as required by statute. The testimony does not show that G.P.’s mental disorder has resulted in injury to himself or others or the imminent threat of such injury; nor does it show that the mental disorder has deprived G.P. of the ability to protect his own life or health. See § 53-21-102(15), MCA.

Dr. Carlson’s testimony also does not establish the existence of an “emergency situation” as the legislature defined it in § 53-21-102(4), MCA. Nothing in that testimony shows that G.P. or another person was in “imminent danger” of death or serious bodily harm from G.P.’s activities.

While I agree with the Court’s statement that a § 53-21-129, MCA, determination of “whether an emergency situation exists is left to the professional person,” I agree only in the context of applicable statutory definitions. The Court apparently intends to allow “professional persons” to define both “seriously mentally ill” and “emergency situation” as the mood strikes them and without regard to statutory definitions. The result of the Court’s decision is exactly contrary to the legislature’s carefully stated intent that a person may not be either detained under the emergency detention statute or involuntarily committed on the basis of a mental disorder unless that disorder causes the person to be seriously mentally ill. Moreover, the Court’s decision results in an unprecedented and unjustified expansion of the State’s ability to detain Montana citizens who suffer from mental disorders but who have not been shown to be a danger to themselves *383or others. I cannot agree that these results are legally correct or otherwise appropriate. I dissent.