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07/10/91 ANN HERMAN

July 10, 1991

IN RE: ANN HERMAN, APPELLANT


Appeal from the Superior Court of the District of Columbia; Hon. Samuel B. Block, Trial Judge

Vacated by Order of the Court April 7, 1992. Rehearing En Banc Granted April 7, 1992,

Rogers, Chief Judge, and Steadman and Farrell, Associate Judges. Opinion for the court by Associate Judge Steadman. Dissenting opinion by Chief Judge Rogers.

The opinion of the court was delivered by: Steadman

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). *fn1

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 Non-violence, 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, *fn2 until she realized, I think, that she [Dr. Goetcheus] was a doctor. . . . And then she 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. *fn3

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 has had multiple psychiatric admissions w/diagnosis of paranoid schizophrenia. Staff has 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 ill *fn4 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. *fn5 However, appellant has chosen not to avail herself of these statutory opportunities for review of her condition, *fn6 pending Disposition of this expedited appeal from the trial court's ...


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