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06/24/93 HAZEL GAITHER

June 24, 1993

IN RE: HAZEL GAITHER, APPELLANT


Appeal from the Superior Court of the District of Columbia; (Hon. John R. Hess, Trial Judge)

Before Terry, Schwelb, and Sullivan, Associate Judges.

The opinion of the court was delivered by: Terry

TERRY, Associate Judge : Appellant Hazel Gaither appeals from an order committing her to Saint Elizabeths Hospital for inpatient treatment. She asserts that the order was based on a "trial," as opposed to a Disposition hearing, and that at this trial the court improperly shifted the burden of proof to her and required her to show that she was not a danger to herself or to others. Additionally, appellant contends that the court failed to consider less restrictive alternatives to inpatient treatment and failed to make findings of fact in support of its order. Because it is clear from the record that the proceeding before the court was a Disposition hearing, that the court did not impermissibly shift the burden of proof, and that the court found inpatient treatment to be the least restrictive alternative, we affirm the order of commitment.

I

On November 9, 1989, Dr. Henry Edwards, a physician at the mental health unit of the District of Columbia Jail, filed an application, pursuant to D.C. Code § 21-522 (1989), *fn1 for the emergency hospitalization of appellant Gaither. In his application the doctor said that appellant, a resident of the jail *fn2 who was scheduled to be released that very day, was in "no condition to care for herself and protect herself in the community." He also stated that appellant was experiencing delusions and hallucinations, that she was threatening to harm others, and that her condition was deteriorating despite the use of medication. She was then taken to Saint Elizabeths Hospital, where Dr. William Richie, a psychiatrist, examined her and found her to be "impulsive, hostile, psychotically decompensated." He certified in writing that he had examined appellant and concluded that she was mentally ill and "likely to injure herself or others [and was] in addition unable to care for herself." *fn3 She was thereupon admitted to Saint Elizabeths.

On November 20 the hospital filed a petition for judicial hospitalization (civil commitment), *fn4 accompanied by a certificate from one of its resident psychiatrists which contained a diagnosis of schizophrenia, paranoid type, and recommended further inpatient treatment. A hearing was scheduled for December 14, 1989, before the court's Commission on Mental Health, but it was continued eleven times and not actually held until September 25, 1990. *fn5 A few days later, on October 1, the Commission filed a report recommending that appellant remain an inpatient at Saint Elizabeths for an indeterminate period. In its report the Commission said:

Upon consideration of the medical history, the demeanor of the respondent, and the testimony taken at the hearing, the Commission concludes that the respondent is suffering from SCHIZOPHRENIA, PARANOID TYPE, CHRONIC, and is likely to injure herself and others if allowed to remain at liberty. [Emphasis in original.]

At the end of the report was a notice to appellant that she "or anyone in behalf" had five days within which to demand a trial by jury "to determine the issue of mental illness." *fn6

No such demand was filed within the five-day period. The court then appointed a guardian ad litem and directed him to ascertain whether appellant was competent to decide whether she should accept the recommendation of the Commission or challenge it before a Judge or jury. *fn7 If she was not competent, the court's order said, the guardian was to apply the "substituted judgment" test of In re Boyd, 403 A.2d 744 (D.C. 1979). Shortly thereafter the guardian ad litem filed a report stating that in his opinion appellant was not competent to make a decision. He concluded, after applying the substituted judgment test, that appellant, if competent, would accept the recommendation of the Commission for inpatient treatment, thereby waiving a trial to determine whether she was mentally ill. The case was then set down for a Disposition hearing, which was held, again after several continuances, on February 27, 1991.

Meanwhile, in November 1990, Dr. Sinen Pe-Pimentel, another psychiatrist who was treating appellant at Saint Elizabeths, submitted to the court a "Dispositional Report." Dr. Pe-Pimentel related that appellant refused to take medication because she said she was pregnant, refused to sleep in her bed because she believed it was full of snakes, and claimed that her late husband was God. In addition, the doctor said, appellant was "hostile, suspicious, angry, seclusive, withdrawn. . . ." She habitually wore winter clothing on hot days, apparently did not bathe (no one knew for sure), and threatened bodily harm to others without provocation. "She cannot take care of herself and her activities of daily living. She has no insight or judgment. She is a danger if let out at liberty." The doctor concluded that appellant was "suffering from a major mental illness," which she diagnosed as "Schizophrenia, Paranoid, Chronic."

At the Disposition hearing, the hospital relied upon the Commission's report, Dr. Pe-Pimentel's report, the guardian's report, and a social worker's report to support its recommendation for inpatient treatment. Appellant's counsel then called Diane Carroll, a psychiatric nursing assistant who worked on the evening shift in appellant's hospital ward. Ms. Carroll testified that appellant bathed daily, took her medicine without incident, performed her assigned chores very well, and appeared to be cooperative. In rebuttal the hospital called Dr. Pe-Pimentel. She testified that in her opinion appellant was dangerous and that it was necessary for her to remain hospitalized until she could better care for herself. The doctor also said that appellant was delusional, had poor impulse control, and threatened other people. She refused to take prescribed medication even though it would be helpful to her. On cross-examination the doctor acknowledged that her opinion as to appellant's dangerousness was based in part on appellant's numerous past convictions for assault and battery, as well as the murder of her husband. *fn8

In closing arguments to the court, appellant's counsel *fn9 urged that, although the hearing was "Dispositional rather than perhaps a revocation," the hospital should be required to demonstrate the least restrictive alternative to inpatient commitment. The court then concluded:

All the medical evidence in this case points to the fact that the least restrictive commitment is an inpatient commitment at this time. The Mental Health Commission so recommends. The treatment team recommends that. The doctor who just testified [Dr. Pe-Pimentel] recommends that. The only thing which might be considered to the contrary is the testimony of the psychiatric nursing assistant which states that on the ...


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