Clifford v. Mainegeneral Med. Ctr.

Decision Date22 April 2014
Docket NumberDocket No. Ken–13–71.
Citation91 A.3d 567,2014 ME 60
PartiesLinda J. CLIFFORD v. MAINEGENERAL MEDICAL CENTER et al.
CourtMaine Supreme Court

OPINION TEXT STARTS HERE

Christopher C. Taintor, Esq. (orally), Norman, Hanson & DeTroy, LLC, Portland, on the briefs, for appellant Scott Kemmerer.

Curtis Webber, Esq. (orally), and Patricia C. Shorey, Esq., Linnell, Choate & Webber, Auburn, on the briefs, for appellee Linda J. Clifford.

Mark C. Joyce, Esq., Disability Rights Center of Maine, Augusta, on the briefs, for amicus curiae Disability Rights Center of Maine.

Panel: ALEXANDER, LEVY, SILVER, MEAD, and CLIFFORD, JJ. *

ALEXANDER, J.

[¶ 1] This case arises from three emails that Linda J. Clifford sent to the Governor's office in late September 2007. Those emails triggered a series of events that ultimately led to Clifford being detained overnight against her will in the psychiatric unit at MaineGeneral Medical Center (MaineGeneral) in Augusta.

[¶ 2] Scott Kemmerer, an emergency room physician, appeals from an order of the Superior Court (Kennebec County, Marden, J.) partially denying consolidated motions to dismiss and for summary judgment 1 on Clifford's complaint. Clifford alleges that Kemmerer and MaineGeneral deprived her of liberty without due process and in violation of statutory rights, and subjected her to an unreasonable search, in violation of the Maine Civil Rights Act (MCRA), 5 M.R.S. § 4682(1–A) (2013).2

[¶ 3] Kemmerer contends that the court erred in denying his motion for summary judgment on the MCRA claims, arguing that he is entitled to absolute immunity against those MCRA claims by virtue of the immunity provided pursuant to the Maine Tort Claims Act (MTCA), 14 M.R.S. § 8111(1)(C) (2013), to individuals performing a discretionary function on behalf of the State. Alternatively, Kemmerer argues that he is entitled to common law qualified immunity against Clifford's MCRA claims. Kemmerer also asks us to conclude that he is entitled to judgment on Clifford's MCRA claims as a matter of law because he did not engage in or threaten “physical force or violence” and therefore cannot be liable under the MCRA.

[¶ 4] Clifford contends that Kemmerer is not entitled to absolute immunity against her MCRA claims and that the remainder of his appeal should be dismissed because it is interlocutory and because factual disputes preclude resolution of the remaining issues.

[¶ 5] Additionally, the Superior Court reported to us, pursuant to M.R.App. P. 24(c), two questions of law: (1) “Whether the conduct found by [the] court to have been committed by [Kemmerer] is actionable under the [Maine] Human Rights Act (MHRA), see5 M.R.S. §§ 4551–4634 (2007), 3 and (2) “Whether [MaineGeneral] may be held liable under the [MCRA] on the theory of respondeat superior for the wrongful acts of its employees.”

[¶ 6] We reach the merits of Kemmerer's appeal on the immunity issues and affirm the trial court's order denying summary judgment, but we do not reach Kemmerer's remaining arguments in this interlocutory appeal. We decline to reach the issues raised by the trial court's report.

I. THE EMERGENCY ADMISSION LAWS

[¶ 7] The terms of the emergency admission laws,4 also called the “blue paper” process or, albeit imprecisely, “involuntary commitment” laws, in effect in 2007, when the events in this case occurred, are important to an understanding of the issues before us. A law enforcement officer's authority to take an individual into protective custody to be transported for a mental health examination was established by 34–B M.R.S. § 3862 (2007),5 which stated in pertinent part:

1. Law enforcement officer's power. If a law enforcement officer has reasonable grounds to believe, based upon probable cause, that a person may be mentally ill and that due to that condition the person presents a threat of imminent and substantial physical harm to that person or to other persons, ... the law enforcement officer:

A. May take the person into protective custody; and

B. If the law enforcement officer does take the person into protective custody, shall deliver the person immediately for examination as provided in section 3863.... The examination may be performed by a licensed physician, a licensed clinical psychologist, a physician's assistant, a nurse practitioner or a certified psychiatric clinical nurse specialist.

When, in formulating probable cause, the law enforcement officer relies upon information provided by a 3rd-party informant, the officer shall confirm that the informant has reason to believe, based upon the informant's recent personal observations of or conversations with a person, that the person may be mentally ill and that due to that condition the person presents a threat of imminent and substantial physical harm to that person or to other persons.

2. Certificate not executed. If a certificate relating to the person's likelihood of serious harm is not executed by the examiner under section 3863, ... the officer shall:

A. Release the person from protective custody and, with the person's permission, return the person forthwithto the person's place of residence, if within the territorial jurisdiction of the officer;

B. Release the person from protective custody and, with the person's permission, return the person forthwith to the place where the person was taken into protective custody; or

C. If the person is also under arrest for a violation of law, retain the person in custody until the person is released in accordance with the law.

3. Certificate executed. If the certificate is executed by the examiner under section 3863, the officer shall undertake forthwith to secure the endorsement of a judicial officer under section 3863 and may detain the person for a reasonable period of time, not to exceed 18 hours, pending that endorsement.

[¶ 8] The emergency admission law applicable in 2007 regarding the mental examinations to be conducted after a person was taken into custody, 34–B M.R.S. § 3863 (2007),6 stated, in pertinent part:

A person may be admitted to a psychiatric hospital on an emergency basis according to the following procedures.

1. Application. Any health officer, law enforcement officer or other person may make a written application to admit a person to a psychiatric hospital, subject to the prohibitions and penalties of section 3805, stating:

A. The person's belief that the person is mentally ill and, because of the person's illness, poses a likelihood of serious harm; and

B. The grounds for this belief.

2. Certifying examination. The written application must be accompanied by a dated certificate, signed by a licensed physician, physician's assistant, certified psychiatric clinical nurse specialist, nurse practitioner or [psychologist, indicating that]

A. The physician, physician's assistant, certified psychiatric clinical nurse specialist, nurse practitioner or psychologist has examined the person on the date of the certificate; and

B. The physician, physician's assistant, certified psychiatric clinical nurse specialist, nurse practitioner or psychologist is of the opinion that the person is mentally ill and, because of that illness, poses a likelihood of serious harm. The written certificate must include a description of the grounds for that opinion.

2–A. Custody Agreement. A ... law enforcement agency may meet with representatives of those public and private health practitioners and health care facilities that are willing and qualified to perform the certifying examination required by this section in order to attempt to work out a procedure for the custody of the person who is to be examined while that person is waiting for that examination. Any agreement must be written and signed by and filed with all participating parties. In the event of failure to work out an agreement that is satisfactory to all participating parties, the procedures of section 3862 and [section 3863] continue to apply.

As part of an agreement the law enforcement officer requesting certification may transfer protective custody of the person for whom the certificationis requested to ... a health officer if that officer agrees....

3. Judicial review. The application and accompanying certificate must be reviewed by a [specified judicial officer]....

A. If the judge or justice finds the application and accompanying certificate to be regular and in accordance with the law, the judge or justice shall endorse them and promptly send them to the admitting psychiatric hospital....

B. A person may not be held against the person's will in a hospital under this section, except that a person for whom an examiner has executed the certificate under subsection 2 may be detained in a hospital for a reasonable period of time, not to exceed 24 hours, pending endorsement by a judge or justice, if:

....

(2) For a person sought to be involuntarily admitted under this section, the person or persons seeking the involuntary admission undertake to secure the endorsement immediately upon execution of the certificate by the examiner.

....

[¶ 9] Thus, pursuant to then-existing law, a law enforcement officer could take an individual into protective custody if there was probable cause to believe that the person was then mentally ill and, as a result, posed a threat of imminent and substantial harm to herself or others, but if the officer relied on information from a third party to establish probable cause, the officer was required to confirm that the third party's assessment was based on “recent personal observations or conversations with” the person. The officer was then required to immediately deliver the person for a psychological examination pursuant to section 3863.

[¶ 10] The person could be involuntarily admitted to a psychiatric hospital on an emergency basis only upon application, which could be made by any person, and after an examination and issuance of a certificate that the person, because of his or her mental...

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