Matter of Rosell

ROGERS, Associate Judge,

concurring:

I join the majority opinion because this division is bound to follow Williams v. Meredith, 407 A.2d 569 (D.C.1979), and In re Morris, 482 A.2d 369 (D.C.1984). M.A.P. v. Ryan, 285 A.2d 310 (D.C.1971). I write separately because of my concern about what has happened to the statutory requirement that an application for involuntary hospitalization must be completed by “a physician or qualified psychologist of the person.” D.C.Code § 21-521 (1987 Supp.). According to our decisions, this requirement need no longer concern us if the committing court finds that there is probable cause to confine the person for whom an application has been filed by a licensed physician who has had some form of personal contact with the patient. In view of the careful efforts in the District of Columbia Hospitalization of the Mentally Ill Act (Ervin Act) to protect a prospective *184patient’s rights and the Act’s preference for voluntary commitment over involuntary commitments, see In re Lomax 386 A.2d 1185, 1188 (D.C.1978) (en banc) (citing Covington v. Harris, 136 U.S.App.D.C. 35, 41, 419 F.2d 617, 623 (1969)), the former “being nontraumatic to the patient and avoidpng] the stigma of enforced hospitalization [and] ... insurpng] that patients may be treated at a time when prognosis for recovery is greatest — before they become seriously ill[,]” S.Rep. No. 925, 88th Cong., 2d Sess. 11 (1964); see also H.R.Rep. No. 1833, 88th Cong., 2d Sess. 5 (1964), our decision in the instant case fails to come to grips with the statutory limitation of a “physician of the person.” See Nova Univ. v. Educational Institution Licensure Comm’n, 483 A.2d 1172, 1179-80 (D.C.1984) (court’s interpretation of statute should not render any provision of statute meaningless), cert. denied, 470 U.S. 1054, 105 S.Ct. 1759, 84 L.Ed.2d 822 (1985); Office of People’s Counsel v. Public Serv. Comm’n, 477 A.2d 1079, 1084 (D.C.1984) (same); cf. W. Dor-LAND, DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1016 (26th ed. 1981) (defining “family physician” as “a medical specialist who plans and provides the comprehensive primary health care of all members of a family ... on a continuing basis”).

As originally enacted, the Ervin Act contained the language “family physician.” See Act of Sept. 15, 1964, Pub.L. No. 88-597, § 6(a), 78 Stat. 944, 946. The use of this language appears to have derived from a Congressional preference for voluntary commitment over involuntary commitment, see H.R.Rep. No. 1833, 88th Cong., 2d Sess. 5 (1964), and from a belief that in situations requiring emergency hospitalization, individuals were more likely to enlist the aid of their family physician rather than that of the police or other governmental authorities. Id. at 11. The text of the statute retained the “family physician” language until 1970, when the words “physician of the person” were substituted for “family physician.” District of Columbia Court Reform and Criminal Procedure Act of 1970, Pub.L. No. 91-358, § 150(c)(2), 84 Stat. 473, 567.

In Williams v. Meredith, supra, the court referred to testimony given by witnesses while the Court Reform Act was being considered that the language “family physician” was too narrow because it was being interpreted literally and many patients no longer have a readily available family physician, particularly in the case of transients for whom emergency care is often required. 407 A.2d at 572-73 (quoting Constitutional Rights of the Mentally III: Hearings Before the Subcomm. on Constitutional Rights of the Senate Comm, on the Judiciary, 91st Cong., 1st & 2d Sess. 19-20 (1970)). Although not referring to any statement reflecting Congressional intent, the court nonetheless concluded that Congress was concerned with the role played by physicians and “sought to ensure that the physicians who would be permitted to act in a quasi-official capacity in this emergency procedure would possess a patient-oriented role identification.” Id. at 573. The court distinguished such physicians, who would offer “the guidance of a protective role identification and ... [would act] upon the criteria of voluntariness and loyalty[,]” from “public health officers and police officers [who] are guided by their duty to protect the public_” Id. The court also gleaned from the provisions of D.C.Code § 21-502(c) Congressional concern that there be no conflict of interests that might jeopardize the physician’s impartiality. Id.

With this background it hardly can be suggested that the requirement that the application be filed by the “physician of the person” is no longer a significant part of the Ervin Act. To avoid unnecessary involuntary hospitalizations1 a “physician of the person” should be a duly licensed physician *185who has assumed, with the consent of the person to be treated, treatment responsibility at least for the time necessary to permit discussion with a person, and who, in the best interests of that person, has explored to the extent that the patient (and/or the patient’s family or guardian) is mentally competent to do so, the alternative forms of available treatment. Thus, in Williams v. Meredith the court concluded that the statute required a doctor who “must be guided in acting for the individual’s best interest by [his or her] role as the voluntarily selected professional who owes professional responsibility and a professional’s loyalty to the individual.” 407 A.2d at 573. Absent evidence that a physician has advised a person of treatment alternatives, the trial court is not in a position to be sure that an involuntary commitment is necessary. See, e.g., In re Morris, supra, 482 A.2d at 373-74 (patient’s records to be amended to show voluntary commitment).

In the instant case, unlike the patient in Williams v. Meredith, Rosell attacked the failure to comply with § 21-521 before a probable cause determination had been made, and the trial court found that the emergency one-hour consultation did not meet the statutory requirement.2 From this finding, it would seem to follow that no further proceeding could occur until a person is consulted by “a physician of the person” who thereafter concludes that involuntary commitment is required. Indeed, I fail to understand why the hospital did not view it to be in its own interest to permit Rosell an opportunity to consult with a physician whom she voluntarily selected before an application for an involuntary commitment was prepared. Neither the hospital nor the government can have a preference for involuntary over voluntary commitments in view of the statutory scheme. And, absent circumstances not present here, where, for example, an individual is incompetent and without family or any other caring person, or an emergency exists,3 the delay attendant upon observance of the statutory requirement for preparation of an application by a “physician of the person,” is, in my view, more consistent with Congressional intent, see Lomax, supra, 386 A.2d at 1188, than the after-the-fact procedure that this court has approved.

. The legislative history of the Ervin Act states:

The policy of [the legislation] to encourage voluntary admissions deterred the subcommittee from providing for detention of voluntary admittees when judicial proceedings for their hospitalization are initiated. It was thought that if individuals realize that there are absolutely no restraints on their release, they will be less hesitant to apply as voluntary patients.

S.Rep. No. 925, 88th Cong., 2d Sess. 15 (1964).

. In Morris, the court was not presented with a challenge to the application for involuntary commitment on the ground that the signing physician was not a "physician of the person,” but rather that such physician had not examined Morris within the statutory timeframe. 482 A.2d at 371. See D.C.Code § 21-582(b) (physician must examine patient within 72 hours of signing application for involuntary commitment).

. H.R.Rep. No. 1833, 88th Cong., 2d Sess. 1 (1964) (since emergency admission procedures lack some of the safeguards of judicial hospitalization, they should be used only in clear emergencies); S.Rep. No. 925, 88th Cong., 2d Sess. 16 (1964) (same).