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01/29/93 MATTER ANN HERMAN

January 29, 1993

IN THE MATTER OF: ANN HERMAN, APPELLANT


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

Before Rogers, Chief Judge, Ferren, Terry, Steadman, Schwelb, Farrell, Wagner, King and Sullivan, Associate Judges. Opinion for the court by Associate Judge Steadman. Dissenting opinion by Chief Judge Rogers, with whom Associate Judge Ferren joins.

The opinion of the court was delivered by: Steadman

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 all the prerequisites set forth in the statute. *fn1 At a hearing held 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. §§ 523, 528. A panel of this court affirmed the trial court's Conclusion that even if the original application for emergency hospitalization did not meet the prerequisites of §§ 521 and 582 (b), such defects, if any, had been remedied pursuant to a line of cases culminating in In re Rosell, 547 A.2d 180 (D.C. 1988). In re Herman, 594 A.2d 533 (D.C. 1991). We subsequently granted appellant's petition for rehearing en banc and vacated the panel's opinion and judgment in order to give full court consideration to the effect of such so-called "application defects" on the trial court's authority to order continued emergency hospitalization of a mentally ill person. In re Herman, 604 A.2d 1391 (D.C. 1992).

We conclude that under the statutory scheme established for emergency hospitalizations, when the trial court becomes involved in the process pursuant to §§ 524 or 525, its focus should be on the present mental condition of the person involved and whether or not probable cause exists to believe that person is likely to injure himself or herself or others if not immediately detained. At that point in the process, a defect in the application itself should be taken into account insofar as it may bear upon the reliability and integrity of the application and the information therein, but should not be treated as a per se cause for immediate termination of the proceedings and release of the person involved no matter how dangerous to self or others. Particularly in light of other, expressly-created statutory and commonlaw mechanisms designed to protect against unauthorized and unwarranted applications, we are unwilling to read into the statute an unexpressed congressional intent that any defect in the application should without more invalidate the entire process of emergency hospitalization.

I

A

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 there. Appellant refused to speak with Ms. Porter or any other clinician about her situation or to accept any medical help at the shelter. 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. Ms. Porter suggested to Dr. Goetcheus that she remove her stethoscope and not identify herself as a doctor because of appellant's unwillingness to speak with health care professionals. 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 who had observed appellant's behavior. 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 § 21-521. 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 for purposes of emergency observation and diagnosis. Thereafter, all the steps prescribed by statute for emergency hospitalization were taken within the allotted time periods. Pursuant to § 522, a psychiatrist on duty at the hospital 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, and proceeded to hear the hospital's three witnesses. The first of these witnesses was appellant's daughter, who recounted appellant's history of mental illness. Next, Ms. Porter testified that she had learned from shelter staff that appellant smoked cigarettes while in bed and that she had defecated in her bed and had smeared feces in the bathroom. Ms. Porter had personally observed similar behavior, and she testified that she had seen what appeared to be feces on appellant's arms and under her fingernails, and had noticed that appellant "constantly" flicked lit matches. Finally, Robert Brown, M.D., a psychiatrist at the hospital, testified that he had diagnosed appellant's condition as "paranoid schizophrenia" based on his own personal observations, those of other hospital staff who had observed appellant during the nearly 18 days she had spent at St. Elizabeths prior to the hearing, and on the testimony at the hearing. *fn4 Appellant 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, based on the testimony at the hearing, that there was probable cause to believe that appellant was mentally ill and that as a consequence, she was a danger to herself if allowed to remain at liberty. *fn5 Accordingly, he ordered that she continue to be hospitalized for emergency observation and diagnosis pursuant to § 524 (a)(1). *fn6

B

Of primary relevance to this case are two of the sections of the District of Columbia Hospitalization of the Mentally Ill Act (also known as the Ervin Act), D.C. Code §§ 21-501 et seq. (1989), 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 certain 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 to a hospital for the admission of the affected individual for purposes of emergency observation and diagnosis.

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) *fn7 provides that:

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.

As its starting point, the panel assumed, as had the trial court, that the physician who signed the application for emergency hospitalization of appellant was not the "physician of the person" as required by § 521. *fn8 Drawing on a line of cases beginning with Williams v. Meredith, 407 A.2d 569 (D.C. 1979), which held that certain defects in applications made pursuant to § 521, including an application completed by one found not to be in fact the "physician of the person," were "remedied" by a trial court's subsequent finding of probable cause in a § 524 order or after a § 525 hearing, *fn9 the panel concluded that the trial court properly ordered the continued emergency hospitalization of appellant. *fn10 With respect to the alleged § 582 (b) violation, the panel concluded that by conversing with appellant, shelter staff, and the head of the EPRD before providing in the application a "detailed report" of the reasons for applying for emergency hospitalization, the physician, "having involved herself personally in the process of determining appellant's need for emergency hospitalization and faced with a refusal of appellant to cooperate, did all that the statute required." Herman, supra, 594 A.2d at 537-38. The panel noted that while excusing defective applications raised "significant concern," ordering the release of appellant would ignore the fact that the trial court had determined, after a full evidentiary hearing, that probable cause existed to believe that she was "'mentally ill and, because of that illness . . . likely to injure herself or others' unless immediately hospitalized for observation and diagnosis not to exceed the limited maximum period allowed by the Act." Id. at 539 (quoting Rosell, supra, 547 A.2d at 183).

As in the panel opinion, we will assume without deciding that Dr. Goetcheus was not the "physician of the person," and hence that the application for appellant's emergency hospitalization violated § 521 in that regard. With respect to the alleged § 582 (b) violation, we will further assume, again entirely without deciding, that the extent of personal observation was insufficient to strictly meet the requirement of § 582 (b). Therefore, we turn directly to the issue whether the alleged failure to meet these requirements barred the trial court from going on to consider whether in fact there was probable cause that ...


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