Hutchinson, In re

• Decision Date: 07 November 1980
• Citation: 421 A.2d 261,279 Pa.Super. 401
• Parties: In re Commitment of Donna HUTCHINSON. Appeal of Donna HUTCHINSON.
• Court: Pennsylvania Superior Court

Page 261

421 A.2d 261

279 Pa.Super. 401

In re Commitment of Donna HUTCHINSON Appeal of Donna HUTCHINSON.

Superior Court of Pennsylvania.

Argued March 17, 1980.

Filed July 11, 1980.

Intervention and Reargument En Banc Denied Nov. 7, 1980.

Robert J. Manara, Reading, for appellant.

Alvin Maurer, City Sol., Schuylkill County, participating party.

Before PRICE, CAVANAUGH and WATKINS, JJ.

CAVANAUGH, Judge:

Following a hearing in the Court of Common Pleas of Schuylkill County on May 12, 1979, Donna Hutchinson, appellant, was committed to Wernersville State Hospital for a period of ninety days pursuant to the "Mental Health Procedures Act," (MHPA), Act of July 9, 1976, P.L. 817, No. 143, § 304, as amended, 50 P.S. § 7304. Appellant represented by counsel other than hearing counsel, filed a motion for reconsideration of the commitment order in which she alleged, inter alia, that hearing counsel was ineffective for failing to object to hearsay testimony. This motion was denied on June 21, 1979, and appellant filed a timely appeal raising only the issue of ineffectiveness.

On May 19, 1979, appellant was admitted to the Pottsville Hospital for involuntary emergency examination for a period not to exceed seventy-two hours on the petition of appellant's grandmother, Mrs. Victoria Lech. 50 P.S. § 7302. Mrs. Lech, with whom appellant resided, alleged that appellant had been physically abusive toward her and had struck her with an object. On May 21, 1979, the examining physician at the hospital petitioned the court to commit appellant for involuntary treatment for a period of not more than ninety days. 50 P.S. § 7304. A hearing was held the following day.

For a court to order involuntary treatment under 50 P.S. § 7304, it must be determined that a person is severely mentally disabled and in need of treatment. An individual is considered severely mentally disabled when he or she poses a clear and present danger of harm to others or to himself or herself. 50 P.S. § 7301(a). Instantly, appellant was detained on the grounds that she posed a clear and present danger to others. To establish dangerousness to others, it must be shown that within the past thirty days the person has inflicted or attempted to inflict serious bodily harm on another and that there is reason to believe that such conduct will be repeated. 50 P.S. § 7301(b)(1).

At the hearing, Dr. Albert Kazlauskas, a psychiatrist, testified that the May 19, 1979, commitment forms indicated that within the last thirty days appellant had struck her grandmother and also had possessed a gun with which she had threatened to kill someone. Although the Schuylkill Haven police had taken the gun from her, appellant had continued her threats to kill someone. Dr. Kazlauskas also testified as to appellant's prior history of psychiatric treatment and his personal examination of her during the emergency commitment. He concluded that appellant was suffering from a severe mental disability and without treatment she was a serious threat to the people of the community. Appellant took the stand and denied threatening or striking her grandmother and possessing a gun during that period of time. She testified that her relatives were hostile toward her and admitted that she was not taking the medication prescribed by the doctor. At the close of the hearing, the trial court ordered appellant to receive in-patient treatment at Wernersville State Hospital for a period not to exceed ninety days.

We first must determine whether appellant may raise the issue of ineffective assistance of counsel in an appeal from a civil commitment proceeding under 50 P.S. § 7304. The lower court found that because the instant involuntary commitment hearing is a civil proceeding, appellant does not have a constitutional right to the effective assistance of counsel. Therefore, since appellant's hearing counsel failed to object to hearsay evidence admitted at the hearing, the lower court, relying upon Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974), held that the issue had been waived.

Involuntary civil commitment of mentally ill persons constitutes a substantial deprivation of liberty which may only be accomplished in accordance with due process protection. ¹ Appeal of Niccoli, 472 Pa. 389, 395 n.4, 372 A.2d 749, 752 n.4 (1977); Commonwealth v. McQuaid, 464 Pa. 499, 517, 347 A.2d 465, 475 (1975); Commonwealth ex rel. Finken v. Roop, 234 Pa.Super. 155, 163, 339 A.2d 764, 768 (1975) appeal dismissed 424 U.S. 960, 96 S.Ct. 1452, 47 L.Ed.2d 728 (1976). See also: Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979). This rationale was recognized by the General Assembly in enacting the present MHPA:

It is the policy of the Commonwealth of Pennsylvania to seek to assure the availability of adequate treatment to persons who are mentally ill, and it is the purpose of this act to establish procedures whereby this policy can be effected. The provisions of this act shall be interpreted in conformity with the principles of due process to make voluntary and involuntary treatment available where the need is great and its absence could result in serious harm to the mentally ill person or to others.

50 P.S. § 7102.

The Pennsylvania Supreme Court, in In re Gross, 476 Pa. 203, 382 A.2d 116 (1978), stated that the MHPA evinces "an enlightened legislative endeavor to strike a balance between the state's valid interest in imposing and providing mental health treatment and the individual patient's rights." Id. at 212, 382 A.2d at 121.

Among the due process protections that the legislature considered necessary in civil commitment hearings are:

(e) Hearings on Petition for Court-ordered Involuntary Treatment.-A hearing on a petition for court-ordered involuntary treatment shall be conducted according to the following:

(1) The person shall have the right to counsel and to the assistance of an expert in mental health.

(2) The person shall not be called as a witness without his consent.

(3) The person shall have the right to confront and cross-examine all witnesses and to present evidence in his own behalf.

(4) The hearing shall be public unless it is requested to be private by the person or his counsel.

(5) A stenographic or other sufficient record shall be made, which shall be impounded by the court and may be obtained or examined only upon the request of the person or his counsel or by order of the court on good cause shown.

(6) The hearing shall be conducted by a judge or by a mental health review officer and may be held at a location other than a courthouse when doing so appears to be in the best interest of the person.

(7) A decision shall be rendered within 48 hours after the close of evidence.

Instantly, the lower court held that a claim of ineffective assistance of counsel is cognizable only in a criminal action and that, because an involuntary commitment hearing under MHPA is a civil proceeding, appellant enjoys no constitutional right to effective counsel. Although in the past Pennsylvania courts have relied on the civil/criminal distinction in determining the due process to be afforded an alleged mental incompetent, e.g. Commonwealth v. Bechtel, 384 Pa. 184, 120 A.2d 295 (1956); Commonwealth v. Anderson, 211 Pa.Super. 349, 236 A.2d 558 (1967), such a wooden approach can no longer be determinative in light of the policy expressed in § 7102 and the strict due process safeguards provided in § 7304. Judge Hoffman's comments in Commonwealth ex rel. Finken v. Roop, supra, while not controlling, are instructive:

Euphemistic terminology is not determinative of the application of the Due Process Clause: "We cannot, nor should we ignore the serious consequences of such proceedings simply by designating them as 'collateral' rather than 'criminal' ... Whether denominated collateral or criminal, such proceedings are surely subject to the due process clause of the Constitution." ...

We must consider the reality of the lower court's commitment order. The serious deprivation of liberty and the unfortunate stigma which follow involuntary commitment render the distinction between "criminal" and "civil" proceedings meaningless. (Citations and footnotes omitted.)

Id. 234 Pa.Super. at 171-72, 339 A.2d at 772-73. Accord: McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971); Heryford v. Parker, 396 F.2d 393 (10th Cir. 1968); Quesnell v. State, 83 Wash.2d 224, 517 P.2d 568 (1974).

Of course, all rights given to a person accused of a crime do not automatically apply to a person in a civil commitment hearing. See: Addington v. Texas, supra; McKeiver v. Pennsylvania, supra. Due process is a flexible concept which calls for such procedural safeguards as the particular situation demands in light of the interests at stake. Parham v. J.R., 442 U.S. 584, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979); In re Ballay, 482 F.2d 648 (D.C.Cir. 1973); Johnson v. Solomon, 484 F.Supp. 278 (D.Md.1979); In re Martorano, 464 Pa. 66, 346 A.2d 22 (1975).

In determining whether an individual's right to counsel under the MHPA constitutes the right to the assistance of effective counsel enjoyed by an accused in a criminal proceeding, we must consider the competing interests of the Commonwealth and the individual.

The interests of the Commonwealth in civil commitment of mentally disturbed persons is twofold. One interest is to ensure the availability of adequate treatment to those persons who are mentally ill but who decline treatment. 50 P.S. § 7102. The Commonwealth's right to constrain the freedom of a mentally ill person for his or her benefit is based on the doctrine of parens patriae. The rationale of this doctrine is that the state has a humanitarian duty to safeguard the welfare of the individual. The other interest of the Commonwealth in civil commitment is the protection of the welfare of others from the mentally ill person. The authority to confine dangerous persons arises...