(concurring in the result) — Mental illness is undeniably one of the most tragic and persistent facts of life. That it is difficult to define does not make it impossible to recognize. That it does not readily yield to scientific classification does not mean that people suffering from severe manifestations of it cannot be helped by the state.
One thing, however, is certain: Mental illness will not be prevented nor alleviated nor cured by preachments about due process of law. No dissertations on constitutional theory, whether definitive or amorphous, nor a delineation of legislative history on the subject of mental illness nor an increase in the tempo of bureaucratic paper shuffling will help the patient.
*245There has yet to be invented or discovered a judicial process which in one way or another is not susceptible of some abuse, and procedures for the involuntary confinement and treatment of mentally ill persons are no exception. A major function of the judiciary, therefore, in matters of mental illness is to prevent the abuse of such process but at the same time provide a workable system under which the mentally ill, for the protection of themselves and others, may be sequestered for care and treatment.
A workable procedural system allowing for isolation of the mentally ill, whose protection, care and treatment require hospitalization, means that the judicial process must be clinical and not penal. This demands a system affording a maximum of medical research, examination and treatment, and a minimum of adversary procedures. Wherever possible and consistent with the fundamental ideals that no one shall be held or confined anywhere by anyone against his will nor subjected to medication without his consent save upon the lawful orders of a court of competent jurisdiction, the adversary trappings of the judicial process should be avoided lest they do more harm to than good for both patient and public.
Authoritative estimates show that, during the 1960’s, 25 percent of all hospital beds in the United States were occupied by schizophrenic patients; and that these schizophrenic patients represented one-half of the three-fourths million patients hospitalized for various kinds of mental illness. See Alexander & Selesnick, The History of Psychiatry (1966). The trial courts, unlike courts of review, are confronted daily with conditions rather than theories; they must meet the felt necessities of the times. Each day there come before the superior courts persons alleged to be very mentally ill, presenting then and there mental illness cases for speedy determination and which must be decided — and which cannot be theorized away by resort to detailed analyses about the basic rights of man.
Although I agree with the court’s decision to remand the instant case for a jury trial, I dissent from the rationale *246which engenders it. The remand should be done not because this record shows any hint whatever of what the court describes as “railroading” or a breach of duty on the part of the guardian ad litem, but simply because the guardian ad litem' and the patient’s private attorney disagreed on whether the circumstances would warrant a jury trial. The only question before us, then, is whether the prospective patient did effectually demand a jury trial. Through her private attorney, I think she did; and I think that the request thus made should have been allowed. Beyond that I would not go.
The state does not question here the right to a jury trial on demand nor that the patient’s private counsel of record made such a demand. But after demand was first made by plaintiff’s counsel in accordance with RCW 71.02.210, the question then arose whether the demand was properly denied for the reason that the guardian ad litem, differing with private counsel, sought to waive the jury trial. Under these circumstances, with both counsel and guardian ad litem apparently acting sincerely and responsibly for the best interests of the patient, but holding different views as to what those best interests required procedurally, I would resolve that difference as the majority has done by holding that the denial of the jury trial was in error. Where timely demand for a jury trial is made by the patient, his attorney, his guardian ad litem, or any one of the three, the statute ought to be construed so as to provide it.
There the matter should end. No earthshaking implications of constitutional due process inhere in this case. It presents no more than a problem of whether the trial court, under the statute, was presented with a timely and effective demand for a jury trial. Thus, after one cuts through layers of obiter dicta to discern its essential holding, In re Gault, 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428 (1967), relied on by this court but which avoids the issue of trial by jury, has little or no application to and is of little precedential value in the case before us.
What are the ingredients of due process of law in mental *247illness hearings? As in all judicial proceedings effecting a restraint upon the person, they start with the premise that some kind of curtailment of personal liberty is involved. It is impossible effectively to examine a person against his will except by detaining him; and all of the judicial rhetoric compiled on the subject will not alter this singular fact. There is no known way to detain a person without his consent except to detain him. But because the detention and eventual treatment may be done without the patient’s consent and are, therefore, involuntary, there is no reason judicial proceedings, fully comporting with due process requirements, cannot be speedy, efficient, fair, and conducted in a clinical rather than punitive atmosphere.
Aside from emergent situations when reasonable minds could not help but agree that, to protect the putative patient or society from imminent danger, the individual should be taken into immediate custody, all constitutional requirements, I think, may be met by detention in a clinical-type quarter, speedy reference to the superior court, early examination by competent medical examiners acting under the auspices of the superior court and early hearing on the question of commitment with counsel acting for the patient either as guardian ad litem or, as in the instant case, private counsel of record at all critical stages of the proceedings. But in any event, counsel, whether as guardian ad litem or as attorney of record or in a dual capacity, should in good conscience feel free to exercise his judgment whether it would be bad for the patient to expose him to the delay and ordeal of a jury trial and that the right to trial by jury should be waived.
The court, relying on the Gault rationale, now assumes that, because the confinement for and treatment of mental illness may be involuntary, the procedure necessary to assure due process of law must inevitably be suffused with all of the accusatory trappings of the criminal courts, and that the procedural scheme in mental illness cases must, therefore, under the constitutions, be squared with the codes of criminal procedure and submitted to the same *248constitutional standards as criminal trials. If, as the court implies, Gault is read to convey that principle, then we have left neither distinctive juvenile courts nor civil mental illness proceedings but simply additional criminal courts— some for young criminals and others for those thought to be mentally ill. To declare that Gault asserts the basic principles for the operation of juvenile courts and mental illness proceedings, will, I think, lead inevitably to the conclusion that children and the mentally ill, except for requiring a unanimous verdict, shall be forced to stand trial in the same manner as persons charged with crime.
I would reject this application of that case. Gault-like opinions should be limited to their precise fact pattern as was done in McKeiver v. Pennsylvania, 403 U.S. 528, 29 L. Ed. 2d 647, 91 S. Ct. 1976 (1971), expressly declaring that there existed no constitutional right to jury trial and sustaining the statutes of Pennsylvania and North Carolina denying a jury trial in juvenile court. It is impossible to apply the dicta of Gault rationally to the complex and infinitely varied situations arising daily in juvenile and mental illness proceedings without abridging those proceedings and crippling the benign purposes for which the juvenile and mental illness courts were established. We should not, I think, as this court now seems to do, employ the Gault yardstick as a measure here. If Gault is to be the rule of decision, then both attorney and guardian ad litem will be duty bound to demand a jury trial both in all juvenile delinquency cases and in all mental illness involuntary commitment proceedings. These will be the inevitable consequences of the Gault rationale, and are to be avoided lest they destroy the juvenile courts and convert mental illness hearings into criminal trials.
The court places great weight, too, I think, upon what it deems to be a holding in Heryford v. Parker, 396 F.2d 393, 396 (10th Cir. 1968), that jury trial cannot be waived by a guardian ad litem without the knowing consent of the person charged with being mentally ill. Aside from the apparent absurdity of such a proposition — a truly mentally ill *249person could not volitionally waive anything — it should be remembered that, outside of Washington, D.C., that court has little responsibility for the prompt resolution of mental illness cases. Moreover, Heryford does not, as I read it, contribute to the paradox engendered by this court now in requiring the knowing consent of the patient to a waiver of jury trial by one who turns out to be mentally ill. Heryford holds no more, I think, than that “Fourteenth Amendment due process requires that the infirm person, or one acting in his behalf, be fully advised of his rights and accorded each of them unless knowingly and understandingly waived.” (Italics mine.)
State trial courts, confronted daily as they are with the tragic problems of mental illness cases, cannot luxuriate in legal abstractions; they are compelled to take care of this urgent business quickly and to provide for the early sequestration and treatment of mentally ill persons, or in the alternative speedily discharge them from custody. In the administration of the mental illness code, trial courts face conditions which have to be dealt with; theirs is the momentous function of providing for the sequestration, detention, protection and custody of the mentally ill or of speedily discharging the subject of the hearing from detention.
The legislature recognized this judicial role, it will be seen, in the enactments now in force and has not, I assume, sought to relieve the courts of these responsibilities in those statutes soon to supersede them, Laws of 1973, 1st Ex. Sess., ch. 142, p. 1014, effective January 1, 1974, and a newer statute already substantially amending the latter statute before its effective date, Laws of 1973, 2d Ex. Sess., ch. 24, p. 59. In neither statute, however, has the legislature intended to make the waiver of jury trial obsolete. All of the current legislation in effect at the time of this case made it procedurally possible to avoid the inevitable anguish, distress and mental damage frequently produced by militant adversary contests in mental illness trials.
Accordingly, the statutes in force at the time of the instant application prescribe that applications for involuntary *250hospitalization begin, not by claim, complaint, information or indictment, but in the blandest of all possible ways — by application, as in probate matters. RCW 71.02.110. With the filing of this application for involuntary hospitalization under oath (RCW 71.02.090), under the existing statutes due process of law sets in, for the court and not administrative officers must issue an order for setting a date for hearing and examinations. Emergencies are provided for, if necessary, “to safeguard the lives and property of the alleged mentally ill person.” The court shall direct that the persons “be immediately apprehended and detained for care, treatment and custody pending hearing and examination.” RCW 71.02.120. That the superior court has constitutional duties and powers in mental illness cases is undoubted. State ex rel. Richey v. Superior Court, 59 Wn.2d 872, 371 P.2d 51 (1962).
Early safeguards against the abuse of process are set up in statutes in force at the time of the instant application. Before the application for involuntary hospitalization could even be filed, the prosecuting attorney or another designated to do so by the court, had to make an endorsement on it showing that the patient had been personally examined, that the applicant for the order queried, and that the examiner had “investigated the merits of the application and believes reasonable grounds exist for filing the same.” RCW 71.02.090.
Statutes now in force, and presumably those to be in force after January 1, 1974, contemplate that the atmosphere and psychology of the mental illness proceedings shall be clinical — not penal. The stark trappings of the courtroom, the jailhouse, and adversary trial are to be avoided. Persons detained pursuant to court order for examination must be taken to hospital-type facilities. RCW 71.02.130. Judicial process is always provided. Notice of hearing on the application for involuntary hospitalization must be given by the clerk of the superior court to the guardian, spouse or next of kin of the allegedly mentally ill person and upon the patient unless the court finds that such *251notice might be injurious to the patient in which case it must be served upon the guardian ad litem. RCW 71.02.140. If the patient has no guardian, the court shall appoint a guardian ad litem for him; there must be a hearing before a judge of the superior court, with the general public excluded unless the patient’s guardian, attorney, or guardian ad litem demands an open hearing, or unless a jury is demanded. RCW 71.02.160.
At least two examining physicians must be appointed by the court and they must file “a written report of the facts and circumstances upon which their testimony is based,” and state their conclusions in writing as to whether or not the patient is mentally ill. RCW 71.02.170. There must be a guardian ad litem and the patient has the right to be represented by counsel if he wishes. Finally, before the court can properly order involuntary commitment and treatment, it must find that the allegedly mentally ill person is suffering from psychosis or other disease impairing his mental health, the symptoms of which are of a suicidal, homicidal or incendiary nature, or of a kind which makes the patient dangerous to himself or to the lives and property of others. Only after this detailed procedure and with all of these safeguards can the court order hospitalization — unless, of course, a jury is demanded. RCW 71.02.200-210. In either event, whether to court or jury, the trial is a civil proceeding and not a criminal one. State ex rel. Richey v. Superior Court, supra.
While the courts must exercise constant vigilance that procedures for involuntary hospitalization are employed neither to deprive one of his freedom for insubstantial, illusory and transient reasons nor to compel confinement where none is medically warranted under law, they are, nevertheless, not required to view applications for involuntary hospitalization with suspicion and treat them as prima facie attempts to deprive the person whose hospitalization is sought as a victim either of personal malice or rampant police power. A patient, in person, or by guardian ad litem, or through counsel, has every right to waive trial by jury, *252and if it appears to the court that trial by jury in the patient’s best interest be waived and his personal representative so indicates, this court ought not construe the mental illness statutes so that either counsel or guardian ad litem are fearful of being held to a breach of duty in declining to demand a jury trial.
Even in criminal cases, a jury trial or a trial itself may be waived (State v. Kratzer, 70 Wn.2d 566, 424 P.2d 316 (1967)); and so, too, may the right to counsel. One may plead guilty with or without the advice and assistance of counsel and where the accused’s decision is competently made and entirely voluntary he may refuse to accept the appointment of counsel. For a statistical table of the percentages of pleas of guilty entered in the courts functioning in twelve of the nation’s largest cities, see P. DonVito, An Experiment in the Use of Court Statistics, 56 Judicature 56, 61 (1972).
Accordingly, in the instant case when the guardian ad litem wrote upon the jury demand that he, “In the best interests of the patient and in her behalf . .• . do[es] not request or permit a jury demand” there is a strong presumption that he acted in the best interests of the patient, and there is no stigma whatever to be attached to this action. That this court now overrides that waiver to direct a jury trial as requested by the patient’s private counsel does not imply either that the guardian ad litem’s waiver of or the attorney’s demand for a jury trial were contrary to the plaintiff’s best interest. All that the court’s opinion here should be deemed to hold is that both actions were sincerely and responsibly undertaken for the patient’s welfare and that where there is an ambivalence between court-appointed guardian ad litem and private counsel with respect to trial by jury, the views of the latter should prevail even though that decision ultimately may turn out not to be in the patient’s best interests.
Hunter and Hamilton, JJ., and Rummel, J. Pro Tern., concur with Hale, C. J.