In Re Herman

594 A.2d 533, 1991 D.C. App. LEXIS 190, 1991 WL 125283

• Court: District of Columbia Court of Appeals
• Decided: July 10, 1991
• Docket: 90-815
• Status: Published

Opinions

STEADMAN, Associate Judge:

Appellant was involuntarily admitted to St. Elizabeths Hospital for emergency observation and diagnosis under D.C.Code § 21-521 (1989). The application was signed by a physician who, appellant asserts, did not meet the prerequisites set forth in that section and § 582(b).¹

At a hearing pursuant to § 525, the trial court found that probable cause had been established to believe that “respondent is mentally ill, and, because of that illness, is likely to injure herself unless immediately hospitalized.” Accordingly, the court authorized continued emergency observation and diagnosis pursuant to § 524(a)(1), which cannot exceed seven days unless formal hospitalization proceedings are commenced. §§ 21-523, -528. The trial court rejected appellant’s argument that the defects in the original application for hospitalization mandated her immediate release, holding that such defects, if any, had been “cured” pursuant to our holding in In re Rosell, 547 A.2d 180 (D.C.1988). We affirm the action of the trial court.

I

Appellant is a sixty-eight-year-old woman with a history of mental illness, including psychiatric hospitalizations over the past thirty years. In February 1990 she arrived in the District of Columbia where she took up residence in the shelter operated by the Community for Creative Nonviolence, located at 2nd and D Streets, N.W. As time went on, the shelter staff became increasingly concerned about appellant’s behavior, and invoked the aid of Priscilla Porter, a social worker assigned to work with female residents at the shelter who had become familiar with appellant during her stay at the shelter. Appellant refused to speak with Ms. Porter or any other clinician about her situation or to accept any medical help at the shelter. However, a crisis mental health team from the Emergency Psychiatric Response Division (“EPRD”) did make an hour-long assessment of appellant on June 7, 1990, but did not refer her for emergency hospitalization at that time.

On June 8, 1990, Ms. Porter requested that Jannelle Goetcheus, M.D., the medical director of the Health Care for the Homeless clinic, examine appellant at the shelter. Apparently Ms. Porter suggested to Dr. Goetcheus that she remove her stethoscope and not identify herself as a doctor. According to Ms. Porter, who witnessed the interview, appellant did speak briefly with Dr. Goetcheus “for several minutes,² until she [appellant] realized, I think, that she [Dr. Goetcheus] was a doctor_ And then she [appellant] got up and walked away.” Dr. Goetcheus then spoke with several staff members. She also discussed the situation with Dr. Keesling, the psychiatrist who is the head of the EPRD, and he advised her to make the necessary application for involuntary hospitalization.

Dr. Goetcheus thereupon filled out the application required by § 521. She erroneously checked the box identifying herself as a “physician employed by the United States or the District of Columbia.” She also failed to check the box that related to compliance with the requirements of § 582.³

The form, signed by Dr. Goetcheus, did state, in its printed text, that the applicant has “reason to believe” that the person to be hospitalized “is mentally ill and, because of such illness, is likely to injure self and/or others if not immediately detained.” Furthermore, in her own handwriting, Dr. Goetcheus explained the bases for this conclusion: “67 year old homeless woman whose behavior has deteriorated in last 2 months. Noted by shelter staff to defecate in her bed & smear feces on bathroom walls, floor, her clothes and her body. Patient talking this a.m. of White House trying to contact her, the President trying to call her, and her husband is attempting to murder her. Daughter of patient states [patient] has had multiple psychiatric admissions w/diagnosis of paranoid schizophrenia. Staff has [observed] patient trying to light cigarette butts, at times almost catching her clothing on fire and concern about mattress catching fire. Patient is danger to herself and others.”

On the basis of this application, appellant was taken into custody and presented for admission to St. Elizabeths Hospital. Thereafter, all the steps prescribed by statute were taken within the allotted time” periods. Pursuant to § 522, a psychiatrist on duty examined appellant, tentatively diagnosed her as suffering from “atypical psychosis,” and concluded that she was “likely to injure herself and/or others unless immediately hospitalized.” Pursuant to § 523, the hospital within 48 hours filed a petition with the Superior Court seeking appellant's detention for an additional seven days of emergency observation and diagnosis, which was granted the same day pursuant to § 524.

Appellant then requested a probable cause hearing pursuant to § 525. Although scheduled for the following day, the hearing was postponed for one week because appellant fired her originally appointed attorney. At the outset of the rescheduled hearing, appellant moved to dismiss the case on the basis of the allegedly improper application. The trial court postponed ruling on the motion at that time. The hospital presented three witnesses: appellant’s daughter, who recounted appellant’s history of mental illness, Ms. Porter, and Robert Brown, M.D., a psychiatrist at the hospital. Appellant, who had interrupted the government witnesses some twenty times with verbal outbursts, testified on her own behalf, as did an investigator for the Public Defender Service.

Following the close of the government’s case, the trial court addressed again the question of the assertedly deficient application and found that the subsequent proceedings had cured any such deficiencies. At the end of all proceedings, the court found that there was probable cause to believe that appellant was mentally ill⁴ and that as a consequence, she was a danger to herself if allowed to remain at liberty. Accordingly, he ordered that she continue to be hospitalized for emergency observation and diagnosis pursuant to § 524(a)(1).

Even prior to the probable cause hearing, on June 14, 1990, the hospital had filed a petition for judicial hospitalization pursuant to § 541. As a result of this petition, appellant was entitled to a prompt hearing before the Commission on Mental Health and the other procedures, including a jury trial, provided in cases of hospitalization under court order, §§ 541-551.⁵ However, appellant has chosen not to avail herself of these statutory opportunities for review of her condition,⁶ pending disposition of this expedited appeal from the trial court’s refusal to order her release. The appeal is based on the sole ground that the original application was assertedly defective.⁷ We turn to that issue.

II

We deal here with those sections of the D.C. Hospitalization of the Mentally Ill Act (also known as the Ervin Act) dealing with the involuntary emergency hospitalization of persons believed to be dangerously mentally ill. Under § 521, such hospitalization can be initiated only as follows:

An accredited officer or agent of the Department of Human Services of the District of Columbia, or an officer authorized to make arrests in the District of Columbia, or a physician or qualified psychologist of the person in question, who has reason to believe that a person is mentally ill and, because of the illness, is likely to injure himself or others if he is not immediately detained may, without a warrant, take the person into custody, transport him to a public or private hospital, and make application for his admission thereto for purposes of emergency observation and diagnosis. The application shall reveal the circumstances under which the person was taken into custody and the reasons therefor.

Thus, only three categories of individuals — employees of the Department of Human Services, police officers, and physicians and qualified psychologists “of the person in question” — are authorized to make the necessary initial application.

A further limitation on such applications insofar as physicians and qualified psychologists are concerned is found in § 582 (contained in the subchapter on “Miscellaneous Provisions”). Its subsection (b)⁸ is relevant to appellant’s argument here:

A petition, application, or certificate of a physician or qualified psychologist may not be considered unless it is based on personal observation and examination of the alleged mentally ill person made by the physician or qualified psychologist not more than 72 hours prior to the making of the petition, application, or certificate. The certificate shall set forth in detail the facts and reasons on which the physician or qualified psychologist based his opinions and conclusions.

In In re Rosell, supra, 547 A.2d at 181, the application for Rosell’s commitment had been made by a physician, but one who was found by the trial court not to be in fact the physician “of the person” of Rosell, as required by § 521. Nonetheless, we held that the trial court correctly ruled that continued detention of Rosell was justified because the government had met its burden of showing at the hearing that probable cause existed to believe that Ro-sell was mentally ill and was likely to injure herself if not detained. In so holding, we found controlling our prior decisions in Williams v. Meredith, 407 A.2d 569 (D.C.1979), and In re Morris, 482 A.2d 369 (D.C.1984).

In Williams, the physician also had not qualified as a physician “of the person.” Rosell attempted to distinguish Williams on the ground that in Williams, the challenge to the application had not come until after the completion of the probable cause hearing under § 525, while Rosell had raised the objection at the outset, but we saw no significance in this procedural distinction. In the Morris case five years later, we were faced with an application which had been altered to state that the physician had examined Morris within the previous 72 hours, when in fact he had not seen him within the previous two weeks. Morris sought to avoid the holding in Williams by withdrawing his request for a judicial hearing under § 525. We still ruled that the court’s ex parte determination of probable cause for further detention under §§ 523 and 524 “remedied the imperfection of the initial application.” Rosell, 547 A.2d at 182 (discussing Morris).

Plainly, then, under Rosell, the fact that, as appears to be the case⁹, the physician signing the application under § 521 was not the “physician of the person” of appellant cannot be a ground for ordering appellant’s release in light of the findings of the trial court at the hearing under § 525.¹⁰

Ill

Appellant, however, argues that an additional ground of invalidity, absent in Rosell, is present here; namely, that the application is not “based on personal observation and examination of the allegedly mentally ill person made by the physician,” as required by § 582(b), quoted above.

The substantive issue at bottom is how far the statutory command for “personal observation and examination” extends. The legislative history of this particular provision is thin. The bill to revise the procedures for the hospitalization of the mentally ill and guarantee those hospitalized civil rights was originally introduced in the 87th Congress, 2d session, as S. 3261, but little action was taken. It was reintroduced in the 88th Congress, 1st session, as S. 935. The Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary held public hearings over three days and received testimony from twenty expert witnesses. Judge Alexander Holt-zoff of the United States District Court for the District of Columbia appeared in his individual capacity and as a representative of the court. Judge Holtzoff submitted to the subcommittee a draft proposal to replace the original bill. Section five of the judge’s proposal, which provided for the qualifications necessary for a physician to be able to complete a certificate to have a person detained at St. Elizabeths, was substantially similar to then existing law except for the third sentence which stated that “[n]o such certificate shall be considered unless it is based on personal observation and examination of the person alleged to be mentally ill made by the certifying physician not more than 72 hours prior to the making of the certificate.” To Protect the Constitutional Rights of the Mentally III: Hearing on S. 935 Before the Subcomm. on Constitutional Rights of the Senate Comm, on the Judiciary, 88th Cong., 1st Sess. 17 (1963).

A revised bill written by the subcommittee offered in substitution of the original bill incorporated much of what Judge Holt-zoff proposed. Section 7(h) of the revised bill, which referred back to § 6(a) allowing a person’s family physician to apply to have the person involuntarily transported to a hospital, contained the provision that “[t]he petition, application, or certificate must be made on personal observation within 72 hours prior to its making.” S. 935, S.Rep. No. 925, 88th Cong., 2d Sess. 6 (1964). The committee stated that “Judge Alexander Holtzoff of the U.S. District Court for the District of Columbia, indicated the need for such an addition to exclude some loose certificates which occasionally have been presented.” Id. at 19. No further mention of this provision was made as it passed through the Senate and the House of Representatives and went to the President for signature.

We are not faced here with a situation of a physician operating by proxy or in absen-tia or in a merely formal sense. Dr. Goet-cheus had personal contact with the prospective admittee for “several minutes,” the sole purpose of which was to allow Dr. Goetcheus to determine whether appellant’s mental condition required emergency hospitalization. Appellant terminated the interview by getting up and walking away. Dr. Goetcheus also undertook to talk personally with other members of the staff who could speak of appellant’s condition, and she undertook to discuss the situation further with Dr. Keesling, who “checked out” the EPRD’s visit with appellant the previous day and advised Dr. Goetcheus to make the application.¹¹ The application contained a detailed report of Dr. Goet-cheus’s investigation into appellant’s condition to support the statement that she had reason to believe that appellant was mentally ill.

We think it would be unwarranted to read § 582 as requiring that the physician signing the application act solely on facts acquired by his or her own personal observation. We have recognized that psychiatrists and psychologists where appropriate may and do rely, in part, on reports of others. See, e.g., Clifford v. United States, 582 A.2d 628, 632 (D.C.1987).¹² However the statutory provision may apply to petitions for formal hospitalization under § 541, we recognize that we are dealing here with an application for emergency hospitalization, where time is a factor. Furthermore, in the case before us, it was the appellant herself who chose to terminate the examination and thereby frustrate whatever further personal observation and examination Dr. Goetcheus might be in a position to make. We conclude in the circumstances of this particular case that Dr. Goetcheus, having involved herself personally in the process of determining appellant’s need for emergency hospitalization and faced with a refusal of appellant to eooperate, did all that the statute required.¹³

A further reason for applying a certain leeway in interpreting the section is demonstrated by its coverage only of physicians and psychologists. This is only one of the three classes of persons who may initiate emergency hospitalizations. No comparable requirement of personal observation of the allegedly mentally ill person is imposed on officers or agents of the Department of Human Services nor on law enforcement officers, as might be expected if personal observation of all relevant facts were considered a vital part of the application. Instead, the structure of the act seems to place primary medical reliance upon the mandatory certificate of the psychiatrist or qualified psychologist on duty at the hospital under § 522, who must, inter alia, state that “he has examined the person.”

It is true that the box in the application form certifying to the fact of personal observation and examination was not checked, and in that respect the application was facially defective. On the facts of this case, this omission was in the class of “minimal procedural deficiencies” which did not infringe on a patient’s rights, In re DeLoatch, 532 A.2d 1343, 1345 (D.C.1987), since the paperwork omission could have been readily corrected. Nonetheless, in this respect the case does differ from Resell, Morris, and Williams, where the alleged errors could not be detected by hospital personnel from the application itself. Where liberty interests are at stake, as here, it is not unreasonable to expect that care will be taken in completing and reviewing such forms.¹⁴

Excusal in certain circumstances of defects in applications for involuntary admission raises significant concern. It could encourage sloppiness in compliance with the statutory provisions, designed in part to protect the rights of those who may exhibit signs of mental illness but not in fact be in need of hospitalization. Although other remedies, such as liability in tort, may perhaps lie in cases where the statutory requirements have not been met, fairness in the overall operation of the statutory scheme depends upon a scrupulous attempt by all concerned to adhere to both the spirit and the letter of the law.

Still, as we said in Rosell, 547 A.2d at 183, “[a]t bottom, we deal here with a situation where a judicial determination has been made after a full evidentiary hearing that probable cause existed to believe that appellant was ‘mentally ill and, because of that illness ... likely to injury herself or others’ unless immediately hospitalized for observation and diagnosis not to exceed the limited maximum period allowed by the Act. In such circumstances, with full recognition of the important liberty interests at stake, some caution would seem in order against an excessively stringent interpretation of the emergency hospitalization portion of the Act before us here.”

Affirmed.

1 . This and all future section references are to Title 21 of the D.C.Code.

2 . Ms. Porter subsequently estimated the time as "three to five minutes," and characterized appellant as having "stormed out.”

3 . The unchecked box states: "that I am not related by blood or marriage to the alleged mentally ill person; that I am not financially interested in the hospital to which said person is to be detained; and that the statements made hereinafter are based on my personal observations and examination of said person not more than 72 hours prior to the making of this application.”

4 . Dr. Brown had diagnosed appellant’s condition as "paranoid schizophrenia.”

5 . Under § 528, the timely filing of the petition also permitted the continued detention of appellant beyond the seven day emergency period, unless the trial court failed to find probable cause under § 525.

6 . Our prior holdings indicate that even if appellant were released pursuant to such subsequent proceedings, we would not treat as moot appellant’s appeal raising the issue of the sufficiency of the original application. See In re Rosell, 547 A.2d 180, 181 n. 2 (D.C.1988) (citing In re Morris, 482 A.2d 369, 371-72 (D.C.1984)). Rosell was discharged from the hospital within several days after the probable cause hearing. Whether indefinite hospitalization following proceedings under §§ 541 to 551 would "cure” any defects in the original emergency proceedings not otherwise cured by the § 525 hearing is, to be sure, less clear.

7 . Before us, appellant does not challenge as such the sufficiency of the evidence at the probable cause hearing.

8 . Subsection (a) also contains limitations: "A petition, application, or certificate authorized under section 21-521 and subsection (a) of section 21-541 [dealing with 'petitions’ for the initiation of formal judicial hospitalization proceedings] may not be considered if made by a physician or qualified psychologist who is related by blood or marriage to the alleged mentally ill person, or who is financially interested in the hospital in which the alleged mentally ill person is to be detained, or, except in the case of physicians or qualified psychologists employed by the United States or the District of Columbia, who are professionally or officially connected with the hospital."

9 . The government does not concede the point, arguing that the trial court had no occasion to develop the full facts. See note 11 infra.

10 . The government reads Rosell, supra, 547 A.2d at 182, to hold that the trial court’s ex parte order under § 524 constitutes a cure, regardless of a § 525 probable cause hearing. That portion of the opinion, however, was dealing with the fact situation in Morris, where the appellant had waived his right to a § 525 hearing.

11 . To the extent that the record is less than totally complete as to Dr. Goetcheus’s interview with appellant and the subsequent investigation through the staff and the discussion with Dr. Keesling, appellant has mainly herself to blame. She did not raise the issue of the validity of the application until the very moment of the hearing, although she had been hospitalized at that point for some two weeks, and Corporation Counsel cannot be much faulted for being unprepared to present direct evidence on the issue.

12 . To be sure, the full extent to which such reliance is warranted in legal proceedings is an unsettled matter. See In re Melton, 565 A.2d 635 (D.C.1989), opinion vacated and reh’g granted en banc, 581 A.2d 788 (D.C.1990). The standards to be applied for expert testimony in a jury trial, however, may not necessarily be the same when dealing with as tentative a document as an application for emergency hospitalization.

13 . As the above discussion indicates, appellant’s admission to St. Elizabeths was based on considerably more than a brief meeting between appellant and Dr. Goetcheus. We also have difficulty in finding fault in this record, where no bad faith is shown, with Dr. Goetcheus’s attempt to ascertain the condition of a potentially mentally disturbed and dangerous individual by not overtly identifying herself as a physician.

14 . Corporation Counsel in its brief correctly characterizes the form involved in this case as less than clear. It has subsequently been replaced by a new version. On the other hand, Dr. Goetcheus's affirmative indication on the form that she was a physician "employed by the United States or the District of Columbia” is less explainable. Corporation Counsel suggests that the difficulty may have arisen because Dr. Goet-cheus was employed by Health Care for the Homeless, an organization funded in large part by the District of Columbia Department of Human Services.