In re Wyler

46 A.3d 396, 2012 WL 2345109, 2012 D.C. App. LEXIS 306
CourtDistrict of Columbia Court of Appeals
DecidedJune 21, 2012
DocketNo. 11-FM-452
StatusPublished
Cited by3 cases

This text of 46 A.3d 396 (In re Wyler) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Wyler, 46 A.3d 396, 2012 WL 2345109, 2012 D.C. App. LEXIS 306 (D.C. 2012).

Opinion

FISHER, Associate Judge:

This appeal, which is technically moot, raises a complex and important procedural issue relating to the hospitalization of the mentally ill. When the government proffered a social worker from the Washington Hospital Center as an expert witness, the court precluded her testimony without conducting voir dire. The government proffered very little information, legal or factual, and the record does not permit us to determine whether she was qualified to testify as an expert on mental illness and dangerousness. Lacking a sufficient record on which to rule, we exercise our discretion to dismiss the government’s appeal as moot. However, because we are persuaded that this is a recurring question that should be decided based on a full record, we identify the issue in a published opinion so that it may be fully examined in a future case.

I. Factual Background

On February 17, 2011, David Wyler arrived at a homeless shelter barefoot and without a coat, despite the cold temperatures. He appeared dirty and unkempt, was talking to himself, and seemed “unable to give coherent and rational answers to questions.” Mr. Wyler was eventually taken to Washington Hospital Center, where Dr. Chan Dang-Vu, a licensed psychiatrist, concluded that he had “symptoms of mental illness and, as a result thereof, is likely to injure [himjself and/or others unless immediately hospitalized.” See D.C.Code § 21-528, -522 (2011 Supp). Under the authority of the Ervin Act,1 the Superior Court granted the Department of Mental Health’s petition to detain Mr. Wyler for further observation and diagnosis. See D.C.Code § 21-524 (2011 Supp.). On March 1, 2011, the day before the Superior Court’s order was set to expire, the Department of Mental Health filed a petition for judicial commitment. See D.C.Code §§ 21-526(c), -541 (2011 Supp.). Mr. Wyler challenged his detention by requesting a probable cause hearing, which was held the next day. See D.C.Code § 21-525 (2001).

As the hearing began, the government informed the trial court that Dr. Dang-Vu could not be present. As an alternative, the District of Columbia proposed to call Abigail Calloway, a licensed social worker, who the government believed could qualify as an expert witness. Government counsel referred to regulations on the “practice of social work,” stating that some types of licensed social workers may render profes[398]*398sional services involving “the diagnosis and treatment of psychosocial problems related to social work theory and methods.” See D.C.Code § 3-1201.02(18)(A) (2011 Supp.). However, the government did not proffer which level of licensure the social worker had achieved, any information about her relevant education or experience, or details about her familiarity with Mr. Wyler.

The court excluded Ms. Calloway’s proposed expert testimony regarding Mr. Wyler’s mental illness and the likelihood that he would endanger himself or others if not hospitalized. The judge reasoned that a mental health expert must testify in proceedings seeking involuntary hospitalization, and “I don’t think that the social worker would qualify.” “[M]y reading of [the caselaw] is I need a psychiatrist or a psychologist ... to testify on the issue of dangerousness.” When the government was unable to secure in-court testimony of a psychiatrist or psychologist, the court dismissed the case and Mr. Wyler was released. The court’s order explained, in part: “No doctor present. Court will not allow social worker to qualify as an expert.”

The District of Columbia appealed the ruling. At oral argument before this court, the government “stressed] the importance of this appeal for the District.... We believe that this will impact our ability to protect both the public and individuals by establishing probable cause[.]” It explains in one of its briefs that “[t]he introduction of expert testimony by licensed independent clinical social workers saves valuable resources by allowing psychologists and psychiatrists to treat patients rather than spending their days in court.” Counsel for Mr. Wyler agreed “that there are very, very serious questions here,” but noted that “a medical degree is different than a degree in social work” and that some types of social workers “are specifically prohibited from rendering diagnoses under the licensure statute.” More fundamentally, Mr. Wyler contends, “the District’s expert proffer was so minimal that the trial court had no choice but to refuse to qualify the government’s witness as an expert.”

II. Right of Appeal

As a preliminary matter, we perceive no bar to a government appeal, such as this one, of a procedural ruling that only a psychiatrist or psychologist may testify on the issue of dangerousness in proceedings seeking involuntary hospitalization. The Ervin Act, which governs involuntary hospitalization of the mentally ill in the District of Columbia, is “significantly silent” regarding government appeals, and we have held “that the petitioner in an involuntary commitment proceeding ... has no right of appeal after a verdict is rendered in favor of the patient.” In re Lomax, 386 A.2d 1185, 1186-87 (D.C.1978) (en banc). Following a full adjudication of the merits, any relief the government could receive in the form of a retrial “would be a nonsequitur because the issue would be the same as at an entirely new proceeding: the current mental state of the respondent, not the mental state at the time of the original trial.” In re Johnson, 691 A.2d 628, 630 (D.C.1997) (citing Lomax, 386 A.2d at 1189). Rather, “when a hospital is unsatisfied with the final verdict in a commitment proceeding, the proper response is to start the entire process again with a new petition.” In re Barlow, 634 A.2d 1246, 1249 n. 5 (D.C.1993).

Nevertheless, “the government retains a narrow channel of appeal in Ervin Act cases that implicate fundamental questions as to the procedure by which the statutorily prescribed hospitalization or commitment process is completed.” Id. at 1249. In In re Barlow, the trial court [399]*399dismissed an emergency hospitalization petition before the presentation of evidence based on the court’s interpretation of the twenty-four-hour deadline for holding a probable cause hearing. Id. We reasoned that “[w]ere the hospital to be denied the right of appeal in this instance, there would be no avenue for this court to review and resolve the inconsistent interpretations of § 21-525 presented in this case.” Id. at 1248-49; see also Johnson, 691 A.2d at 631 (allowing appeal to consider whether and how a voluntary outpatient can be committed as an involuntary outpatient).

A decision to admit or exclude expert testimony ordinarily does not present a fundamental question of procedure.

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Cite This Page — Counsel Stack

Bluebook (online)
46 A.3d 396, 2012 WL 2345109, 2012 D.C. App. LEXIS 306, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-wyler-dc-2012.