concurring. The majority seem to be saying Section 3(A) (B) of Act 817 of 1979 could be interpreted to mean that a ward can be committed to the Arkansas State Hospital without a hearing.
Quite often a ward has a guardian because of minority. A guardian can be appointed for someone with a physical disability. In such a case it would not seem proper for a guardian to have someone “voluntarily” committed to the Arkansas State Hospital without any notice, without a hearing and without an opportunity to protest.
Ark. Stat. Ann. § 57-625(b) reads:
b. CARE, TREATMENT AND CONFINEMENT. If the ward be incompetent and for reasons other than minority and shall not have been committed to the State Hospital as otherwise provided by law, the court may, upon petition of the guardian of the person or other interested person, after such notice as the court shall direct, including notice to the guardian of the person if he is not the petitioner, authorize or direct the guardian of the person to take appropriate action for the commitment of the ward to the State Hospital or, while retaining control over and responsibility for the care of the person of the ward, to place the ward in some other suitable institution for treatment, care or safekeeping. Upon petition of the guardian or other interested person, after a hearing of which the guardian of the person and such other persons as the court may direct shall have notice, the court may, for good cause shown, modify, amend or revoke such order. If the condition of the ward be such as to endanger the person or property of himself or others, the guardian may, in an emergency, temporarily confine the ward in some suitable place or deliver him into the custody of the sheriff for safekeeping in the county jail until such time as the court may hear and act upon a petition, which shall be promptly filed by the guardian, with reference to the commitment of the ward to the State Hospital of for other appropriate provision for his treatment, care and safekeeping.
Act 817 does not expressly repeal Ark. Stat. Ann. § 57-625 and I believe that when the two acts are read together, weight must be given to Ark. Stat. Ann. § 57-625 as controlling in a situation where there is a commitment to the Arkansas State Hospital.
If the majority’s position is that a “voluntary” commitment is with the consent of the ward, this ignores the fact that a ward has a guardian because the ward is incompetent, and his power to consent has been removed.
It is my judgment any commitment without a hearing violates due process of law.
I agree with the result reached by the majority, but I respectfully concur with the majority’s opinion.