Commonwealth v. Blaker

SPAETH, Judge:

This appeal is from an order entered pursuant to section 303 of the Mental Health Procedures Act, Act of July 9, 1976, P.L. 817, No. 143, as amended, 50 P.S. § 7303, committing appellant to a mental hospital for extended involuntary emergency treatment. Appellant argues that the evidence was insufficient to support the commitment.1 We agree, and therefore vacate the order.

Section 301(a) of the Mental Health Procedures Act, 50 P.S. § 7301, provides that a person may be subjected to involuntary examination and treatment only if that person is so “severely mentally disabled” that he “poses a clear and present danger of harm to others or to himself.” Section 301(b) provides specific, narrow, definitions of “clear and present danger”:

Clear and present danger to others shall be shown by establishing that within the past 30 days the person has inflicted or attempted to inflict serious bodily harm on another and that there is a reasonable probability that such conduct will be repeated.
*394Section 301(b)(1), 50 P.S. § 7301(b)(1) (in relevant part) Clear and present danger to himself shall be shown by establishing that within the past 30 days:
(i) the person has acted in such manner as to evidence that he would be unable, without care, supervision and the continued assistance of others, to satisfy his need for nourishment, personal or medical care, shelter, or self-protection and safety, and that there is reasonable probability that death, serious bodily injury or serious physical debilitation would ensue within 30 days unless adequate treatment were afforded under this act[.]

Section 301(b)(2), 50 P.S. § 7301(b)(2) (in relevant part) Not only are these sections narrowly drawn, we have held that the entire Act is to be construed strictly. In re S. C., 280 Pa.Superior Ct. 539, 546, 421 A.2d 853, 857 (1980).

The incident giving rise to appellant’s commitment occurred on April 9, 1979. Shortly before noon appellant, a woman in her middle sixties, had arrived at the Bucks County Nutrition Center, which was located about six miles from her home, in a bus driven by Jean Murphy, a driver for Bucks County Adult Services. For some reason appellant became upset and left the Center on foot. It was a rainy day and she was carrying an umbrella. Ms. Murphy went looking for her and found her about 50 yards away. When Ms. Murphy took appellant’s elbow to help her into the bus, appellant struck her once with the umbrella. She then voluntarily entered the bus and was driven home.

At the informal hearing before the mental health review officer, four people testified in support of appellant’s commitment: Ms. Murphy; Lewis McGrath, also apparently with Adult Services although his exact title is not in the record; Dr. John H. Houey,2 staff psychologist at Eugenia Hospital; and Jacqueline Hancock, geriatric social coordinator at the hospital. On the basis of their testimony, the *395mental health review officer found that appellant represented a clear and present danger to others.

After listening to a tape recording of the proceeding before the mental health review officer, and after hearing the argument of appellant’s counsel, the lower court found that it did not agree with the officer that appellant represented a clear and present danger to others. However, the court found that she did represent a danger to herself, and on that basis, continued the officer’s order of involuntary commitment in effect without change.

In our view, the testimony before the mental health review officer was insufficient to show that appellant represented a clear and present danger either to others, as the officer found, or to herself, as the lower court found.

The testimony concerning the incident at the Center indicated that appellant became upset, left the Center, and walked away about 50 yards. Contrary to the lower court’s statement, Slip op. at 3, there was no testimony that showed she was intending to walk home, or, for that matter, that walking home would have probably resulted in “death, serious bodily injury or serious physical debilitation.” The testimony indicated that appellant is a sensitive person, who is hard to deal with. She is proud, does not like to be touched by others, and because of a hearing problem, has some trouble communicating with others. She said that she did not want to take the medication the hospital was giving her because she was a Christian Scientist.

In support of its finding that appellant was a danger to herself, the lower court cited the testimony of Dr. Houey, the staff psychologist. Dr. Houey had spent a total of one hour and forty-five minutes with appellant at the hospital after her initial involuntary commitment—ten or fifteen minutes the day after she was admitted, an hour the following day, and 30 minutes the morning of the hearing. The *396core of his testimony concerning appellant’s danger to herself and others was as follows:3

Q. Do you feel at the present time she’s in danger to others or herself?
A. I think more like to herself.
Q. What makes you say that?
A. She might get into trouble.
Q. I’m not sure I understand what you mean.
A. Because of suspicious problem with trusting people, I don’t know, I don’t know how much was delusional.
Q. Do you have any evidence of delusional behavior?
A. No, I don’t think I do I try—(garbled sentence).
Q. Well, let’s take this one at a time. As far as her danger to others, specifically in instances related or referred to by Mrs. Murphy.
A. All right, she might accuse someone without any grounds, they might get into altercation or accusations.
* * * $ s|: *
Q. Do you feel that she could be managed on a partial hospitalization or outpatient basis at the present time?
A. I don’t think she can.
Q. Why do you say that?
A. I think she needs constant supervision, she might wander in the street, she might just walk away, not because she’s disoriented, she’s oriented.
Q. She is oriented?
A. She’s oriented.
*397Q. Well, what makes you think she’s a danger to herself, then?
A. She’s afraid to interact with other people cause I have observed her, she doesn’t socialize, she doesn’t interact, when someone approaches who might ask her questions she might walk away, she started talking about unfailures [sic], injustices by ladies, by people, by numerous people.

N.T. 30-31.

None of the witnesses at the hearing before the mental health review officer could cite any instance of appellant’s ever having hit anyone other than the incident with the umbrella, much less any instance of her having caused or attempting to cause serious bodily harm to another person. Dr. Houey was not asked how the behavior he described could probably lead to “death, serious bodily injury or serious physical debilitation within 30 days,” and we fail to see how it could. There was the testimony by Murphy and McGrath that appellant had been hard to deal with for a long time and was the subject of complaints from a number of sources, but if anything, this testimony argues against a finding that her pattern of behavior was immediately life-threatening in the manner required by section 301(b)(2)(i).

Although the mental health review officer heard Dr. Houey testify that he believed that appellant needed constant supervision, her order only provided that appellant’s involuntary commitment should continue for no more than ten days, and that appellant should be discharged if it were possible to arrange to have certain recommended tests done on an outpatient basis. Given this order, and the testimony before the mental health review officer, we find ourselves in agreement with appellant’s counsel, when he argued to the lower court:

I have what I perceive is the heart of the matter and that is the mental health review officer thought that [appellant] needed testing. I myself think she needs testing but under the mental health act I don’t think she is committable, I think the evidence is insufficient as to the danger to herself or others; and at least at this point in time she *398knows what her rights are and has asserted her rights.... [S]he speaks about her Christian Science beliefs and it’s unclear on the record as to how they affect her as far as volunteering to get testing. I think under the Act she is simply not committable involuntarily.

N.T. 48-49.

It is not enough to find, as the lower court did, that appellant “was truly in need of the services offered by [the] mental health system.” Slip op. at 6. Unless one or more of the requirements of section 301, 50 P.S. § 7301, is met, involuntary commitment is not lawful. In Re S. C., supra. See also, O’Connor v. Donaldson, 422 U.S. 563, 575, 95 S.Ct. 2486, 2493, 45 L.Ed.2d 396 (1975).

The order of the lower court is vacated.

O’KICKI, J., files a dissenting opinion.

. Appellant has argued other issues, but we do not reach them. The lower court expressed the view in its opinion that this appeal was moot because the order of involuntary commitment expired two days after this appeal was taken. However, because involuntary commitment affects an important liberty interest, and because by their nature most involuntary commitment orders expire before appellate review is possible, this appeal is not moot. In re S. C., 280 Pa.Superior Ct. 539, 421 A.2d 853 (1980); In re Ann S., 279 Pa.Superior Ct. 618, 421 A.2d 370 (1980); Commonwealth ex rel Bielat v. Bielat, 257 Pa.Superior Ct. 446, 390 A.2d 1321 (1978).

. According to appellant’s brief, at 5, the correct spelling of the psychologist’s name is “Yoo.” Because it is consistently spelled “Houey” in the notes of testimony and the lower court opinion, we shall do the same.

. Although appellant does not raise this point, we cannot help but note that contrary to the requirement of § 303(c), 50 P.S. § 7303(c), no examining physician testified at the hearing before the mental health review officer. At times during his testimony Dr. Houey answered questions in terms of his understanding of the attending physician’s diagnosis. His answer to the question, “What therapy are you recommending?” was, “Attending physician, I have to speak to attending physician. He placed her on (garbled) two capsules.” N.T. 29. According to the Application for Extended Involuntary Treatment, which is part of the record, the attending physician was a Dr. Goldstein. There was no explanation for his failure to testify.