No. 84-487
IN THE SUPREME COURT OF THE STATE OF MONTANA
1985
IN THE MATTER OF THE MENTAL
HEALTH OF G. S.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Joel G. Roth, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
McAllister & Smith, Great Falls, Montana
For Respondent:
J. Fred Bourdeau, County Attorney, Great Falls,
Montana
Barbara Claassen, Asst. Attorney General, Helena,
Plontana
Submitted on Briefs: Feb. 14, 1985
Decided: April 8, 1985
fipR 8 ., 1985
Filed:
Clerk
Mr. Chief Justice 2. A. Turnage delivered the Opinion of the
Court.
G. S. appeals an order of the Cascade County District
Court finding him seriously mentally ill. G. S. was commit-
ted to three months hospitalization in the Warm Springs State
Hospital.
The Cascade County Attorney filed a petition for invol-
untary commitment on July 30, 1984. The petition was filed
at the request of D. S., the father of appellant. The ini-
tial hearing on probable cause to commit was held July 31,
1984.
At this hearing testimony was received that G. S. had
suffered a relapse of previous mental illness in the several
weeks preceding the filing of the petition. The appellant
had. been observed by his father, with whom he was living, to
be digging numerous holes in the backyard. Apparently, the
a.ppel1.antwas attempting to find something of value that he
had buried previously. Additionally, the appellant had
become more violent. At one point G. S. threatened to take
his father's head off with an iron bar that he raised menac-
ingly. On July 25, 1984, the appel-lant engaged his father in
a struggle in a bedroom of their home. There was no apparent
provocation for the fight, and the father received some minor
cuts in defending himself and subduing his son.
At the initial hea-ring, in accordance with S 53-21-122,
MCA, the court appointed an individual to be the friend of
G. S., appointed counsel and named Dr. James Day to be the
professional person to examine G. S. The commitment hearing
was set for August 7, 1984.
The problem in this commitment proceeding and the focus
of the present a.ppea1 developed when the deputy county
attorney informed the court at the initial. hearing that Dr.
Day would be out of town during the August 7 hearing. The
attorney proposed that the court appoint two psychiatrists as
the statutorily required "professional person" such that Dr.
Day could conduct the examination and the second psychia-
trist, Dr. Hughes, could be present at the August 7 commit-
ment hearing to testify on G. S.'s condition. The court
assented to this proposal and both doctors were appointed as
the professional person.
Appellant's counsel did not object to the tandem ap-
pointment but requested that G. S. be allowed to retain his
own psychiatrist to testify on his mental condition. The
court granted this request, but appellant's efforts were
later frustrated when the third psychiatrist refused to
appear on behalf of appellant.
Dr. Day initially committed appellant to Deaconess
Hospital on July 30, 1984. G. S. was placed in the security
unit and was observed on a daily basis by Dr. Day. Observa-
tional notes were recorded and later submitted to the court.
Dr. Hughes assumed Dr. Day's caseload, including G. S., on
August 3, 1984.
Before Dr. Hughes had an opportunity to perform a
formal psychiatric evaluation, G. S. escaped from the hospi-
tal on August 5. The doctor had met briefly with appellant
the day before, but the patient was unwilling to submit to an
examination. Both appointed psychiatrists in this case were
viewed by G. S. as "agents of the prosecution."
Dr. Day and Dr. Hughes separately filed psychiatric
reports containing a diagnosis of appel.lantls mental condi-
tion with the District Court. These reports were ba.sed on
their personal observations of . S. during his
hospitalization, their brief conversations, and the patient's
past medical history. G. S. had previously been under the
care of both doctors.
The commitment hearjng was held as scheduled August 7.
The appellant was present, as he had been returned to custody
following his escape. D. S. testified on the violent and
dangerous behavior of his son. Dr. Hughes, over the objec-
tion of appellant's counsel, testified that G. S. suffered
from an acute exacerbation of a bipolar disorder, manic type.
This diagnosis is a form of schizo-affective schizophrenia.
In the words of Dr. Hughes, the diagnosis was based "upon my
knowledge of Dr. Day's abilities, and my knowledge of
[G. S. ' sl past history, and in reviewing Dr. Day ' s report,
and from visiting with [G. S.] on the morning of August the
4th. . ."
The lower court found that G. S. was suffering from a
mental disorder and the mental disorder presented an imminent
threat of injury to others, particularly his father. In an
order dated August 7, the appellant was committed to Warm
Springs State Hospital.
The arguments appellant presents are best framed as two
issues:
1. Whether the court erred in an involuntary commit-
ment proceeding by allowing a professional person to offer an
opinion on the subject's mental condition, when the doctor
did not formally examine the patient hut relied on another
doctor's report who was not present at the hearing.
2. Whether there was sufficient evidence to support
the court's finding that the appellant was seriously mentally
ill.
Appellant's contentions focus on the language and
proper interpretation of one code section, 5 53-21-126, MCA.
This section sets forth the procedures to be followed at a
trial on a petition for commitment. As the statute explains,
its purpose is limited! to the determination of whether the
respondent (person requested to be committed) is seriously
mentally ill. The underlying definition of seriously mental-
ly ill is whether the person is suffering from a mental
disorder which has resulted in self-inflicted injury or
injury to others or the imminent threat thereof. Section
53-21-102 (14), MCA.
The code provision at issue, S 53-21-126(3), MCA,
provides that the professional person appointed by the court
shal.1 be present at the trial and subject to cross-examina-
tion. Here, we have an unusual factual situation where two
doctors were appointed, their examination responsibilities
were shared, the patient escaped before a formal examination
was completed and one doctor testified at trial. relying on
the other's report.
We find no impropriety in the arrangement whereby two
doctors were appointed by the court such that one could
testify on the patient's mental condition in the other's
absence. This situation is not addressed by the statute and
has not been judicially recognized in Montana. Of critical
importance is that the doctor who did ul-timately diagnose
G. S. 's mental condition was available for cross-examination
at the commitment hearing. Since eppellant's attorney was
given the opportunity to question Dr. Hughes and test the
validity of his diagnosis we find no derogation of the stat-
ute's intent.
Appellant reads S 53-21-126 (31, MCA, to mean any
professional person appointed by the court shall be present
at the trial and subject to cross-examination. Were this the
language of the statute we would resolve the issue differ-
ently. Since the statute reads the professional person
appointed, we accept the arrangement presented as permissible
and will not reverse the court's order.
The Court of Appeals of Eew Mexico was faced with a
.
similar issue in the Matter of Dean (N.M.App. 1980), 607 P.2d
132. In that case, the court affirmed the District Court's
order of involuntary commitment of the defendant. The defen-
dant alleged error because the court had considered opinions
of two absent doctors. In order to commit an adult und-er the
New Mexico statutes, there arguably had to be testimony by
the mental health professional whose opinion was reflected in
the screening report as to the likelihood of defendant caus-
ing serious harm to herself or others. The Court of Appeals
held that the legislature had not explicitly stated that the
person or persons making the report must testify. What was
found to be critical was that sound professional justifica-
tion exist for the commitment proceedings.
Our statutes do require the professional person be
present. However, the critical requirement of professional
justification was satisfied here, where one of two appointed
professionals was present. We hold that where two or more
professionals are appointed pursuant to S 53-21-126(3), the
presence of one at the commitment trial satisfies the
statute.
Appellant argues that it was error to allow Dr. Hughes
to testify when the doctor relied on another doctor's opinion
and Dr. Hughes was not the attending physician. We d-o not
accept this argument for several reasons.
Ru1.e 703, Mont.R.Evid., clearly provides that one
doctor can state his expert opinion based on another doctor's
report. The rule states:
"The facts or data in a particular case
upon which an expert bases an opinion or
inference may be those perceived by or
made known to him at or before the
hearing. If of a type reasonably relied
upon by experts in a particular field in
forming opinions or inferences upon the
subject, the facts or data need not be
admissible in evidence."
This rule was adopted verbatim from the modern federal rubes.
In the advisory committee's comment to the federal rule we
find:
"Facts or data upon which expert opin-
ions are based may, under the rule, be
derived from three possible sources.
The first is the firsthand observation
of the witness, with opinions based
thereon traditionally allowed. A treat-
ing physician affords an example.
R-heingold,The Basis of Medical Testimo-
ny, 15 Vand.L.Rev. 473, 489 (1962).
Whether he must first relate his obser-
vations is treated in Rule 705. The
second source, presentation at the
trial, also reflects existing practice.
The technique may be the familiar hypo-
thetical question or having the expert
attend the trial and hear the testimony
establishing the facts. Problems of
determining what testi-mony the expert
relied upon, when the latter technique
is employed and the testimony is in
conflict, may be resolved by resort to
Rule 705. The third source contemplated
by the rule consists of presentation of
data to the expert outside of court and
other than by his own perception. In
this respect the rule is designed to
broaden the basis for expert opinions
beyond that current in many jurisdic-
tions and to bring the judicial practice
into line with the practice of the
experts themselves when not in court.
Thus a physician - - -
in his own practice
bases x i s diagnosis on information from
numerous sources - - considerable
a n F of
variety, including statements ~
atients and relatives, reports and
Popinions f ? m nurses, technicians a
other doctors, hospital records, and
X rays. Most of them are admissible3
evidence, but only with the expenditure
of substantial time in producing and
examining various authenticating wit-
nesses. The physician makes 1-ife-and-
death decisions in reliance upon them.
His validation, expertly performed and
subject to cross-examination, ought to
suffice for judicial purposes. " (Empha-
sis supplied.) Advisory Committee Note,
F.R.Evid. 703.
Thus, reports and opinions from other doctors are facts
or data for purposes of R.ule 703, Mont.R.Evid. Other deci-
sions of this Court support this holding. Matter of C.M.
(1981), 195 Mont. 171, 635 P.2d 273; Ankeny v. Grunstead
(1976), 170 Mont. 128, 551 P.2d 1027; Klaus v. ~lillberry
(1971), 157 Mont. 277, 485 P.2d 54-
Appellant cites a provision of the criminal code,
46-14-213 (1), MCA, which provides that no one who has not
examined the defendant is competent to testify on his mental
condition. Appellant argues that the provision should be
analogized to the case at bar and invoked to prevent the
nonattending physician, Dr. Hughes, from testifying.
A hearing on involuntary commitment is governed by the
Montana Rules of Civil Procedure, fi 53-21-126(3), MCA; we
find the cited criminal code provision inapplicable and
appell.antls
arguments on this issue without merit.
The second issue ra-ised by appellant is whether sub-
stantial evidence supports his order of commitment. Appel-
lant disputes the finding made by the court, pursuant to
53-21-126(4) (a), MCA, that he was suffering from a mental
disorder.
Our review of the record has identified several sources
of evidence from which the District Court could have
concluded that G. S. suffered a mental disorder. First,
there is the oral testimony of Dr. Hughes. Secondly, there
are the various medical reports that were submitted by the
psychiatrists and the hospital records.
Appellant expressly asks this Court to review the
weight of Dr. Hughes's testimony. This is not the role of an
appellate court. The trier of fact makes findings and this
Court will not disturb them unless shown to be clearly erro-
neous. Rule 52 (b), M.R.Civ.P.
The order of commitment is affirmed.
We concur: